WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTIETH LEGISLATURE

REGULAR SESSION, 2012

FIFTY-NINTH DAY

____________

Charleston, W. Va., Friday, March 9, 2012

The Senate met at 11 a.m.

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

Prayer was offered by Pastor Matthew J. Watts, Grace Bible Church, Charleston, West Virginia.

Pending the reading of the Journal of Thursday, March 8, 2012,

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

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

The Senate then proceeded to the third order of business.

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

Eng. Senate Bill No. 156, Allowing Corrections Commissioner use excess funds to offset operational costs.

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

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

On page one, section eleven, lines one through three, by striking out the words “(a) There is hereby created in the State Treasury a special revenue account designated the Correctional Industries Account.” and inserting in lieu thereof the following: The Correctional Industries Account is continued in the State Treasury.;

And,

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

Eng. Senate Bill No. 156--A Bill to amend and reenact §25-7-11 of the Code of West Virginia, 1931, as amended, relating to continuing the correctional industries account; increasing the maximum amount that may be maintained in the correctional industries account; directing that excess funds in the correctional industries account at the end of any fiscal year be deposited into a new special revenue fund to be known as the division of corrections additional operations account; and specifying the purposes for expenditures from the division of corrections additional operations account.

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

Engrossed Senate Bill No. 156, as amended by the House of Delegates, was then put upon its passage.

On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--34.

The nays were: None.

Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 156) passed with its House of Delegates amended title.

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

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

Eng. Senate Bill No. 166, Making disarming or attempting to disarm correctional officer felony.

Eng. Senate Bill No. 202, Permitting Division of Forestry to enter into stewardship contracts with U. S. Forest Service.

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

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

On page three, section four, line thirty, after the word “contract” by striking out the period and adding the following: and submit an annual report to the Joint Committee on Government and Finance, no later than the first day of October each year, specifying the locations of projects, the amount of funding received, number of contracts, and the purpose of each contract.;

And,

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

Eng. Senate Bill No. 202--A Bill to amend and reenact §19-1A-4 of the Code of West Virginia, 1931, as amended, relating to permitting the Director of the Division of Forestry to enter into stewardship contracts with the United States Forest Service; authorizing projects by written agreement or contract; and directing annual reports to the Joint Committee on Government and Finance.

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

Engrossed Senate Bill No. 202, as amended by the House of Delegates, was then put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 202) passed with its House of Delegates amended title.

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

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

Eng. Senate Bill No. 204, Relating to removal of vehicles from highway in emergency situations.

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

Eng. Senate Bill No. 215, Specifying unobligated moneys in Industrial Access Road Fund revert to State Road Fund.

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

Eng. Com. Sub. for Senate Bill No. 253, Authorizing DEP promulgate legislative rules.

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

Eng. Com. Sub. for Senate Bill No. 321, Authorizing Department of Military Affairs and Public Safety promulgate legislative rules.

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

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

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

ARTICLE 6. AUTHORIZATION FOR DEPARTMENT OF MILITARY AFFAIRS AND PUBLIC SAFETY TO PROMULGATE LEGISLATIVE RULES.

§64-6-1. State Police.

(a) The legislative rule filed in the State Register on July 25, 2011, authorized under the authority of section twenty-five, article two, chapter fifteen of this code, modified by the State Police to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 6, 2012, relating to the State Police (West Virginia State Police Career Progression System, 81 CSR 3), is authorized.

(b) The legislative rule filed in the State Register on July 25, 2011, authorized under the authority of section forty-eight, article fifteen, chapter seventeen-c of this code, modified by the State Police to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 6, 2012, relating to the State Police (West Virginia State Police Modified Vehicle Inspection Manual, 81 CSR 4), is authorized, with the following amendment:

On page ten, paragraph 81-4-4.6.2., after the word “spacers” by adding the following, “on the end of the coil”.

§64-6-2. Governor’s Committee on Crime, Delinquency and Correction.

(a) The legislative rule filed in the State Register on July 28, 2011, authorized under the authority of section three, article twenty-nine, chapter thirty of this code, modified by the Governor’s Committee on Crime, Delinquency and Correction to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 3, 2012, relating to the Governor’s Committee on Crime, Delinquency and Correction (law- enforcement training standards, 149 CSR 2), is authorized.

(b) The legislative rule filed in the State Register on July 28, 2011, authorized under the authority of section eleven, article one-a, chapter sixty-two of this code, modified by the Governor’s Committee on Crime, Delinquency and Correction to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 3, 2012, relating to the Governor’s Committee on Crime, Delinquency and Correction (motor vehicle search standards, 149 CSR 6), is authorized.

§64-6-3. Division of Corrections.

The legislative rule filed in the State Register on May 23, 2011, authorized under the authority of section fourteen, article one, chapter twenty-five of this code, modified by the Division of Corrections to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on July 20, 2011, relating to the Division of Corrections (fees for electronic monitoring of offenders, 90 CSR 8), is authorized.

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

Engrossed Committee Substitute for Senate Bill No. 321, as amended by the House of Delegates, was then put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 321) passed with its title.

Senator Unger moved that the bill take effect from passage.

On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--34.

The nays were: None.

Absent: None.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 321) takes effect from passage.

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

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

Eng. Senate Bill No. 331, Providing certain persons residing with crime victims prosecutorial notification and right to be heard at sentencing and parole proceedings.

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

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

On page two, section two, lines four through eight, by striking out the words “fiduciary of a deceased victim's estate or a member of a deceased victim's immediate family, if known to the prosecutor, or a nonrelated person who resided with the victim at the time of the crime for at least twelve months preceding the crime” and inserting in lieu thereof the following: following persons shall be notified if known by the prosecutor: A member of the deceased victim’s immediate family, the fiduciary of the deceased victim’s estate, or an adult household member residing with the victim”;

On page five, section six, lines thirty-five through thirty-seven, by striking out the words “nonrelated person who resided with the victim for at least twelve months preceding the crime” and inserting in lieu thereof the words “adult household member residing with the victim”;

And,

On page eight, section twenty-three, lines twenty-five through twenty-seven, by striking out the words “nonrelated person who resided with the victim for at least twelve months preceding the crime” and inserting in lieu thereof the words “adult household member residing with the victim”.

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

Engrossed Senate Bill No. 331, as amended by the House of Delegates, was then put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 331) passed with its title.

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

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

Eng. Senate Bill No. 337, Relating to powers and duties of Commissioner of Banking.

Eng. Com. Sub. for Senate Bill No. 362, Authorizing bond issuance for Cacapon Resort State Park and Beech Fork State Park capital improvements.

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

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

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

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §29-22-18e; and that said code be amended by adding thereto a new section, designated §31-15-16b, all to read as follows:

CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 22. STATE LOTTERY ACT.

§29-22-18e. Increase in allocation to State Park Improvement Fund from State Excess Lottery Revenue Fund to permit the issuance of bonds for improvements to Cacapon Resort State Park and Beech Fork State Park.

Notwithstanding any provision of subsection (d), section eighteen-a of this article to the contrary, the deposit of $5 million into the State Park Improvement Fund set forth in section eighteen-a of this article is for the fiscal year beginning July 1, 2012, only. For the fiscal year beginning July 1, 2013, and each fiscal year thereafter, in lieu of the deposits required under subdivision (7), subsection (d), section eighteen-a of this article, the commission shall deposit an amount equal to the certified debt service requirement for the following fiscal year, not to exceed $3 million in any one fiscal year, into the Cacapon and Beech Fork State Park Lottery Revenue Debt Service Fund created in section sixteen-b, article fifteen, chapter thirty-one of this code, to be used in accordance with the provisions of that section, and second, deposit $5 million into the State Park Improvement Fund, established in subsection (d), section eighteen-a of this article, to be used in accordance with the provisions of that section.

CHAPTER 31. CORPORATIONS.

ARTICLE 15. WEST VIRGINIA ECONOMIC DEVELOPMENT AUTHORITY.

§31-15-16b. Lottery revenue bonds for Cacapon Resort State Park and Beech Fork State Park.

(a) (1) The Economic Development Authority shall, in accordance with the provisions of this article, issue revenue bonds, in one or more series, from time to time, to pay for all or a portion of the cost of constructing, equipping, improving or maintaining capital improvement projects under this section or to refund the bonds, at the discretion of the authority. The principal amount of the bonds issued under this section shall not exceed, in the aggregate principal amount of $52.5 million. Any revenue bonds issued on or after the effective date of this section which are secured by lottery proceeds shall mature at a time or times not exceeding thirty years from their respective dates. The principal of, and the interest and redemption premium, if any, on the bonds shall be payable solely from the Cacapon and Beech Fork State Parks Lottery Revenue Debt Service Fund established in this section.

(2) There is hereby created in the State Treasury a special revenue fund named the “Cacapon and Beech Fork State Parks Lottery Revenue Service Fund” into which shall be deposited those amounts specified in section eighteen-e, article twenty-two, chapter twenty-nine of this code. All amounts deposited in the fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding revenue bonds authorized by this section. The authority may further provide in the trust agreement for priorities on the revenues paid into the Cacapon and Beech Fork State Parks Lottery Revenue Debt Service Fund as may be necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this section. The Cacapon and Beech Fork State Parks Lottery Revenue Debt Service Fund shall be pledged solely for the repayment of bonds issued pursuant to this section. On or prior to May 1 of each year, commencing May 1, 2014, the authority shall certify to the state lottery director the principal and interest and coverage ratio requirements for the following fiscal year on any revenue bonds or refunding revenue bonds issued pursuant to this section, and for which moneys deposited in the Cacapon and Beech Fork State Parks Lottery Revenue Debt Service Fund have been pledged, or will be pledged, for repayment pursuant to this section.

(3) After the authority has issued bonds authorized by this section, and after the requirements of all funds have been satisfied, including coverage and reserve funds established in connection with the bonds issued pursuant to this section, any balance remaining in the Cacapon and Beech Fork State Parks Lottery Revenue Debt Service Fund may be used for the redemption of any of the outstanding bonds issued under this section which, by their terms, are then redeemable or for the purchase of the outstanding bonds at the market price, but not to exceed the price, if any, at which redeemable, and all bonds redeemed or purchased shall be immediately canceled and shall not again be issued.

(b) The authority shall expend the bond proceeds, net of issuance costs, reserve funds and refunding costs, for certified capital improvement projects at Cacapon Resort State Park and Beech Fork State Park. The Division of Natural Resources shall submit a proposed list of capital improvement projects to the Governor on or before January 1, 2013. Thereafter, the Governor shall certify to the authority on or before February 1, 2013, a list of those capital improvement projects at Cacapon Resort State Park and Beech Fork State Park that will receive funds from the proceeds of bonds issued pursuant to this section.

At any time prior to the issuance of bonds under this section, the Governor may certify to the authority a revised list of capital improvement projects at Cacapon Resort State Park and Beech Fork State Park that will receive funds from the proceeds of bonds issued pursuant to this section. The Governor shall consult with the Division of Natural Resources prior to certifying a revised list of capital improvement projects to the authority.

(c) Except as may otherwise be expressly provided by the authority, every issue of its notes or bonds shall be special obligations of the authority, payable solely from the property, revenues or other sources of or available to the authority pledged therefor.

(d) The bonds and the notes shall be authorized by the authority pursuant to this section, and shall be secured, be in such denominations, may bear interest at such rate or rates, taxable or tax-exempt, be in such form, either coupon or registered, carry such registration privileges, be payable in such medium of payment and at such place or places and such time or times and be subject to such terms of redemption as the authority may authorize. The bonds and notes of the authority may be sold by the authority, at public or private sale, at or not less than the price the authority determines. The bonds and notes shall be executed by manual or facsimile signature by the chairman of the board, and the official seal of the authority or a facsimile thereof shall be affixed to or printed on each bond and note and attested, manually or by facsimile signature, by the secretary of the board, and any coupons attached to any bond or note shall bear the manual or facsimile signature of the chairman of the board. In case any officer whose signature, or a facsimile of whose signature, appears on any bonds, notes or coupons ceases to be such officer before delivery of such bonds or notes, such signature or facsimile is nevertheless sufficient for all purposes the same as if he or she had remained in office until such delivery; and, in case the seal of the authority has been changed after a facsimile has been imprinted on such bonds or notes, such facsimile seal will continue to be sufficient for all purposes.;

And,

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

Eng. Com. Sub. for Senate Bill No. 362--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §29-22-18e; and to amend said code by adding thereto a new section, designated §31-15-16b, all relating to authorizing the issuance of $52.5 million in bonds for capital improvements for Cacapon Resort State Park and Beech Fork State Park beginning in fiscal year 2013; providing that the debt service on the bonds is payable from an additional allocation to from the State Excess Lottery Revenue Fund; providing that the Economic Development Authority may issue the bonds under certain circumstances; and creating the Cacapon and Beech Fork State Parks Lottery Revenue Debt Service Fund.

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

Engrossed Committee Substitute for Senate Bill No. 362, as amended by the House of Delegates, was then put upon its passage.

Pending discussion,

The question being “Shall Engrossed Committee Substitute for Senate Bill No. 362 pass?”

On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--33.

The nays were: Sypolt--1.

Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 362) passed with its House of Delegates amended title.

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

Eng. Com. Sub. for Senate Bill No. 369, Permitting Deputy Sheriff Retirement System retirants to modify benefit options upon divorce.

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

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

On page five, section twelve, line seventy-two, after the word “divorce” by inserting the words “or annulment”;

On page five, section twelve, lines eighty-five and eighty-six, by striking out the words “name a new spouse as annuitant for any of the survivorship retirement benefit options” and inserting in lieu thereof the words “change the retirement benefit option pursuant to the provisions of this subdivision”;

And,

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

Eng. Com. Sub. for Senate Bill No. 369--A Bill to amend and reenact §7-14D-12 of the Code of West Virginia, 1931, as amended, relating to modifying the Deputy Sheriff Retirement System to allow a retirant upon divorce, annulment or remarriage to change the retirement benefit options under certain circumstances; and prohibiting causes of action against the board based upon such changes.

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

Engrossed Committee Substitute for Senate Bill No. 369, as amended by the House of Delegates, was then put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 369) passed with its House of Delegates amended title.

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

A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect July 1, 2012, and requested the concurrence of the Senate in the House of Delegates amendment, as to

Eng. Com. Sub. for Senate Bill No. 373, Providing State Police collect fee for advanced training.

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

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

On page three, section three, line twenty-two, by striking out the words “reasonable fee” and inserting in lieu thereof the words “reasonable daily fee per student”.

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

Engrossed Committee Substitute for Senate Bill No. 373, as amended by the House of Delegates, was then put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 373) passed with its title.

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

The nays were: None.

Absent: None.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 373) takes effect July 1, 2012.

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

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

Eng. Senate Bill No. 386, Clarifying entities included in water's-edge group for income tax purposes.

Eng. Com. Sub. for Com. Sub. for Senate Bill No. 418, Relating to qualifications of Parole Board members.

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

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

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

That §62-12-12 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 12. PROBATION AND PAROLE.

§62-12-12. Parole board generally.

There shall be a state board of parole, known as (a) The West Virginia Parole Board is continued. The board shall consist of nine members, each of whom shall have been a resident of this state for at least five consecutive years prior to his or her appointment. No more than five of the board members may at any one time belong to the same political party. The board shall be appointed by the Governor, by and with the advice and consent of the Senate.

(b) Appointments following the effective date of this section shall be made in such a manner that each congressional district is represented and so that no more than four and no less than two members of the board reside in any one congressional district. No more than two members of the board may reside in any one county. Each member of the board shall have a degree in criminal justice, or like experience and academic training

(c) Any person initially appointed to the board on or after July 1, 2012, shall have at least a baccalaureate degree from an accredited college or university institution and at least five years of actual experience in the fields of penology, corrections, law enforcement, sociology, law, education, psychology, social work, medicine or a combination thereof Each member of the board shall have a degree in criminal justice, sociology, law, education, psychology, social work, or medicine, or like experience and academic training and shall be otherwise competent to perform the duties of his or her office. The members shall be appointed for overlapping terms of six years. Any member qualified under this section is Members are eligible for reappointment. The members of the board shall devote their full time and attention to their board duties. The Governor shall appoint one of the nine appointed members to serve as chairperson at the Governor’s will and pleasure.

On motion of Senator Unger, the Senate refused to concur in the foregoing House amendment to the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 418) and requested the House of Delegates to recede therefrom.

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

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

Eng. Senate Bill No. 424, Exempting certain barbers from continuing education requirement.

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

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

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

ARTICLE 27. BOARD OF BARBERS AND COSMETOLOGISTS.

§30-27-10. Professional license and certificate renewal requirements.

(a) A professional licensee and certificate holder shall annually or biennially on or before January 1, renew his or her professional license or certificate by completing a form prescribed by the board, paying the renewal fee and submitting any other information required by the board.

(b) The board shall charge a fee for each renewal of a license or certificate, and a late fee for any renewal not paid by the due date.

(c) The board shall require as a condition of renewal of a professional license or certificate that each licensee or certificate holder complete continuing education: Provided, That a barber who has been licensed for twenty years or more is exempt from the continuing education requirement of this subsection.

(d) The board may deny an application for renewal for any reason which would justify the denial of an original application for a license or certificate.;

And,

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

Eng. Senate Bill No. 424--A Bill to amend and reenact §30-27-10 of the Code of West Virginia, 1931, as amended, relating to the Board of Barbers and Cosmetologists; and exempting certain barbers from continuing education requirements.

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

Engrossed Senate Bill No. 424, as amended by the House of Delegates, was then put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 424) passed with its House of Delegates amended title.

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

The nays were: None.

Absent: None.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 424) takes effect July 1, 2012.

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

Eng. Senate Bill No. 436, Facilitating collaboration between public school and higher education systems to promote seamless curricula.

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

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

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

That §18-27-1, §18-27-2, §18-27-3, §18-27-4, §18-27-5, §18-27-6, §18-27-7, §18-27-8, §18-27-9, §18-27-10, §18-27-11, §18-27-12, §18-27-13, §18-27-14, §18-27-15, §18-27-16, §18-27-17, §18-27-18, §18-27-19, §18-27-20, §18-27-21 and §18-27-22 of the Code of West Virginia, 1931, as amended, be repealed; that §18-2-10 of said code be amended and reenacted; that §18-2B-1, §18-2B-2, §18-2B-3, §18-2B-4 and §18-2B-7 of said code be amended and reenacted; that said code be amended by adding thereto a new article, designated §18-13-1, §18-13-2, §18-13-3, §18-13-4 and §18-13-5; that said code be amended by adding thereto a new article, designated §18B-3B-1, §18B-3B-2 and §18B-3B-3; that §18B-3C-1, §18B-3C-2 and §18B-3C-4 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §18B-14-1, all to read as follows:

CHAPTER 18. EDUCATION.

ARTICLE 2. STATE BOARD OF EDUCATION.

§18-2-10. Certificates and awards.

The State Board of Education shall make promulgate rules and regulations and shall determine the minimum standards for the granting of certificates and awards for secondary vocational education, adult basic education, adult occupational education and adult technical preparatory education, subject to the provisions of section two, article two-b of this chapter and article three-a of chapter eighteen-b of this code.

The State Board shall provide a program of adult basic education at each state community and technical college campus where developmental education services are provided in cooperation with the West Virginia Council for Community and Technical College Education and the institutional board of governors of each college. This approach to providing adult basic education links these programs with developmental education and creates a simpler, clearer pathway for adults to enter college.

ARTICLE 2B. AREA VOCATIONAL PROGRAM.

§18-2B-1. Aims and purposes of program; areas where available.

The aims and purposes of the area vocational educational program shall be are to provide vocational training or retraining on an organized basis designed to prepare individuals for useful employment in recognized occupations. The program shall be made available to residents of West Virginia in an area or areas designated and approved by the West Virginia board of vocational education State Board.

§18-2B-2. Authority to establish programs, etc.; Division of Vocational Education established; rules; director.

(a) The State Board may establish, operate and maintain area vocational educational programs including the acquisition by purchase, lease, gift or otherwise of necessary lands and the construction, expansion, remodeling, alteration and equipping of necessary buildings for the purpose of operating and conducting educational training centers.

(b) The State Board may delegate its operational authority for multicounty vocational centers to an administrative council composed of equal representation from each of the participating county boards of education, the superintendent of schools from each participating county, and the state director of vocational education or his or her representative. To this end, there is hereby expressly established in the State Board a division of vocational education which shall determine the area or areas in which the programs are to be conducted and is authorized to promulgate rules necessary to carry out the provisions of this article, pursuant to article three-b, chapter twenty-nine-a of this code. The director of the division of vocational education administers and supervises the area vocational educational programs.

§18-2B-3. Area vocational education program funds.

There is hereby established a fund to be known as the Area Vocational Education Program Fund for Secondary Education. There is hereby established a separate fund to be known as the Area Vocational Education Program Fund for Post-Secondary Vocational Education. All moneys appropriated for such purpose by the Legislature as well as any gifts or grants made to the appropriate fund by any governmental subdivision of the state or by the United States government or by any individual, firm or corporation, to carry out the provisions of this article shall be expended by the State Board. of Education or the board of directors, as the case may be.

§18-2B-4. Expenditure of funds; title to property.

The State Board of Education and the board of directors, as the case may be, are authorized and empowered to may expend the area vocational education program funds for salaries; teachers' retirement contributions and necessary traveling expenses of teachers and other necessary employees, including, but not limited to, vocational guidance counselors; for purchase, rental, maintenance and repair of instructional equipment, buildings and supplies; and for the necessary costs of transportation of certified students.

§18-2B-7. Transportation of students.

The State Board of vocational education is hereby authorized and empowered to may pay for the transportation of any certified unemployed person participating in any area vocational educational program during the period of time that he or she is engaged in said the training program at any of the instructional centers.

ARTICLE 13. West Virginia EDGE.

§18-13-1. Earn a Degree - Graduate Early (EDGE) initiative established; purposes.

The Earn a Degree - Graduate Early initiative herein established is known and may be cited as “West Virginia EDGE”. This program is part of the programs of study and seamless curriculum initiative that focuses on aligning curriculum between education levels. Specifically, West Virginia EDGE is established to connect public schools with higher education for the following purposes:

(a) To prepare public high school students for success in the workplace or post-secondary education; and

(b) To provide the opportunity for these students to earn community and technical college credit free-of-charge for the duplicated secondary and post-secondary courses identified during the curriculum alignment process.

§18-13-2. Goals for West Virginia EDGE.

In order to serve the citizens of the state by promoting a higher college-going rate, reducing the time and cost for students to obtain college credentials and expanding opportunities for economic development, the West Virginia EDGE initiative shall meet the following goals:

(1) Create incentives for more students to continue their education beyond high school by providing all students with information about and access to courses that will prepare them to meet college-level standards;

(2) Expand successful concurrent enrollment programs that include all students, not just those who are designated as college bound. The goal here is to prepare all students for both work and post-secondary education with the same rigorous curriculum;

(3) Align junior and senior year secondary courses with community and technical college certificate and associate degree programs. This alignment provides access to early entrance college courses which offer all students the opportunity to establish a college transcript while still in high school;

(4) Increase the number of students attending public community and technical colleges by participating in a collaborative partnership between the public schools and the state community and technical colleges; and

(5) Establish programs of study pathways in combination with early entrance college courses which together allow a student to obtain an associate degree one year after high school graduation or to receive an associate degree along with the high school diploma.

§18-13-3. Program administration and accountability.

(a) West Virginia EDGE is administered by the Assistant State Superintendent of the Division of Technical, Adult and Institutional Education who serves as State Tech-Prep Coordinator. The community and technical college/career and technical education consortia planning districts created by section four, article three-c, chapter eighteen-b of this code serve as regional consortia to implement the program.

(b) The duties of State Tech-Prep Coordinator include, but are not limited to, the following:

(1) Developing a collaborative agreement with the facilitating state community and technical college or colleges in each consortium district and with the Council for Community and Technical College Education to meet the goals and objectives of this article.

(2) Meeting the record-keeping requirements of section nine, article eight, chapter five of this code:

(A) By developing or adapting an existing comprehensive relational data base and data analysis system for student tracking to assure that consistent, reliable data relevant to the goals of the program are available; and

(B) By tracking and evaluating EDGE outcomes across all eight consortia districts and by creating a standardized reporting procedure for collecting consistent EDGE data at the state level;

(3) Assuring that coordinators in the district consortia prepare and retain reliable supporting source documents necessary to validate the data included with the state electronic database;

(4) Providing documentation to substantiate program outcomes, including, but not limited to, the number of students who enroll in the program, specific courses taken, student course and final exam grades, the number who earn EDGE credits and, of these, the number who apply the credits in pursuit of degrees or certifications at state community and technical colleges; and

(5) Collecting data relevant to the goals and objectives established for this initiative, analyzing the data, and preparing a report for the Legislative Oversight Commission on Education Accountability by December 1, 2012, and annually thereafter. The specific focus of the report is the analysis of data on program outcomes to demonstrate to what degree the initiative has met the goals and objectives of this article.

§18-13-4. Joint rule required.

The State Board and the West Virginia Council for Community and Technical College Education, created in section three, article two-b, chapter eighteen-b of this code, shall promulgate a joint legislative rule in accordance with article three-b, chapter twenty-nine-a of this code, for the administration of West Virginia EDGE. This rule shall incorporate strategies designed to achieve the overall goals of the program, methods of operation, and step-by-step procedures for achieving the objectives outlined in section two and for implementing the reporting and accountability measures set forth in section three of this article.

§18-13-5. No specific level of appropriation required.

The Legislature recognizes the importance of the West Virginia Edge Program and will endeavor to provide sufficient funds to meet program goals and objectives. However, funding is subject to appropriation by the Legislature and nothing in this article requires any specific level of appropriation.

CHAPTER 18B. HIGHER EDUCATION.

ARTICLE 3B. COLLABORATIVE DEGREE COMPLETION PROGRAM.

§18B-3B-1. Legislative findings and intent.

(a) The Legislature makes the following findings:

(1) Evidence from national studies shows clearly that the need to increase the number of Americans who hold post-secondary credentials has reached a critical point. According to Complete College America, the United States has fallen from its long-held position as first among the nations and now ranks tenth in the percentage of young adults with a college degree. Even more discouraging is the statistic which shows that, for the first time in national history, the current generation of college-age Americans will be less educated than their parents’ generation.

(2) In West Virginia, the large numbers of high school students who are uninterested and/or unprepared for college can be attributed to three primary factors:

(A) Lack of alignment in courses between public education and public colleges and universities;

(B) Lack of clear career pathways presented to students early enough to help them choose and follow an articulated path from high school through post-secondary education; and

(C) Lack of knowledge among students and parents about financial aid opportunities that can help them and their families defray the cost of attending college.

(3) Sixty-three percent of jobs now available or to become available in the near future require post-secondary education. This statistic is particularly relevant for community and technical college students, but even for students who choose to pursue a four-year degree, it is critical that they be clearly focused on career goals in order to succeed.

(4) Currently, a severe gap exists between the demands for technically skilled workers in West Virginia and the aspirations and programmatic focus of many of our students. Nearly thirty percent of the state’s high school students have failed to enroll in either the pre-baccalaureate professional pathway or the career and technical education skilled pathway. Most of these individuals could be better served in a focused program of study that begins in the public schools and makes a seamless transition to the post-secondary level in the state community and technical colleges.

(5) The best way to promote this focus on career goals among our students is through implementation of career pathways. This is an integrated collection of programs and services intended to develop students’ core academic, technical and employability skills; provide them with continuous education and training; and place them in high-demand, high-opportunity jobs.

(6) In West Virginia, preparing students to achieve higher levels of education is a responsibility shared among the state agencies responsible for providing education and workforce development training. Since increasing the education level of state citizens enhances West Virginia’s economic future and the general well-being of its citizens, providing additional opportunities to earn a college credential is the responsibility of all public secondary education and state institutions of higher education.

(b) It is the intent of the Legislature to encompass the entire public higher education system to remove those obstacles that block these pathways to college completion and to direct agencies and institutions to collaborate and cooperate to deliver needed services. Therefore, the object of this article is two-fold:

(1) To set forth a viable collaborative model that public community and technical colleges and public school career centers shall adopt to increase the number of West Virginians with a college credential; and

(2) To maximize existing resources and capacity to train the work force in West Virginia by encouraging the most efficient expenditure of available dollars.

§18B-3B-2. Collaborative degree completion program established; program applicability and objectives.

(a) The Collaborative Degree Completion Program is hereby established as a collaborative partnership which includes the following:

(1) The public school career and technical centers which includes state technology centers, technical centers, career centers and career/technical centers; and

(2) The state community and technical colleges.

(b) The program shall meet the following objectives:

(1) Increasing the number of West Virginians who hold a college credential and providing opportunities for a larger number of adults to earn that credential;

(2) Increasing the education and technical skill levels of the state’s work force; and

(3) Delivering post-secondary technical education in the most effective and cost efficient manner by maximizing the available resources of career centers and community and technical colleges.

(c) The program shall be adopted by each community and technical college/career and technical education consortia planning district. Each district shall assess the needs of its employers, institutions and centers and may adapt the basic model to fit the needs of the area to be served; however, each model shall include the following basic strategies to meet the objectives established in this article:

(1) Identify post-secondary adult career-technical education programs offered by the public school career centers that are to be evaluated for delivery as a Certificate of Applied Science or an Associate of Applied Science Degree;

(2) Ensure that all collaborative programs meet the conditions of the Higher Learning Commission of the North Central Association of Schools and Colleges which is the accrediting body for state community and technical colleges;

(3) Ensure that all collaborative programs meet the academic standards of the participating college; and

(4) Provide for the collaborative program to remain onsite at the career and technical center if participating agencies determine that site to be the best location for achieving program objectives.

§18B-3B-3. Powers and duties of agencies participating in collaborative degree completion program.

Members of each community and technical college/career and technical education consortia planning district shall enter into an agreement that delineates the division of responsibilities among the facilitating community and technical college pursuant to section four, article three-c of this chapter and the career and technical centers, including activities for which these entities are jointly responsible.

(a) The following activities are the responsibility of the facilitating community and technical college in each consortia planning district:

(1) Approve all curricula course and/or programs through the college’s approval process;

(2) Maintain authority over the curriculum as required by the college’s accrediting agency;

(3) Deliver all program general education courses;

(4) Award the appropriate degree;

(5) Employ all general education faculty and approve the employment of all technical program faculty;

(6) Enroll students through the college’s admission and registration process and administer student financial aid, including coordinating and administering veterans’ education benefits;

(7) Charge and collect the college’s tuition and fees; and

(8) Pay the career and technical center for technical faculty time.

(b) The following activities are the responsibility of each career and technical center within the consortium planning district:

(1) Deliver the majority of the technical content courses;

(2) Maintain equipment and laboratories and provide adequate instructional space if the program is delivered onsite at the career and technical center; and

(3) Employ technical content faculty, if needed. If participants choose, these faculty members may be provided by the facilitating community and technical college.

(c) The following activities are the joint responsibility of the facilitating community and technical college and each career and technical center in the consortium planning district:

(1) Maintain programmatic accreditation, if required;

(2) Maintain student transcripts at both the community and technical college and the career and technical center. The college transcript is the official transcript of record;

(3) Determine admission standards and student acceptance into the programs;

(4) Market the program and share the cost of marketing as determined in the consortia agreement;

(5) Develop and implement a program of cross counseling in which counselors from secondary and post-secondary career and technical centers and state community and technical colleges meet with students and their parents, beginning in the eighth grade to answer their education and career-related questions, to serve as a source of support through high school graduation and to provide specific, targeted information on career pathways and financial aid opportunities; and

(6) Determine the feasibility of collaboratively developing and implementing post-secondary-level programs to extend high school programs that currently are terminal.

ARTICLE 3C. COMMUNITY AND TECHNICAL COLLEGE SYSTEM.

§18B-3C-1. Legislative findings.

(a) The Legislature makes the following findings related to state community and technical colleges:

(1) Community and technical colleges are a distinctively American invention. They fill a critical gap between public secondary education and the baccalaureate institutions and universities and they provide a connection between adult basic education and higher education. Their overriding mission is to provide affordable access to post-secondary education and to provide this education and related services to people who otherwise might not have enrolled in a college or university. They provide access to students who live in geographic proximity and who seek low-cost post-secondary education.

(2) As the state’s primary provider of workforce education and training, community and technical colleges located in every region of West Virginia are essential to a statewide strategy to prepare students for high-demand, high-wage jobs, workforce development necessary to diversify and grow the state’s economy, and further post-secondary education and life long learning.

(3) The mission of state community and technical colleges is to provide comprehensive education services that combine the critical functions of career-technical education and work force development, non-credit industry training, transfer education, developmental education and continuing education.

(4) While the student population of state community and technical colleges is now evenly divided between those who are under age twenty-five and adults who are twenty-five and older, the number in both categories who earn a degree or industry-recognized certificate within six years remains low. The declining numbers of high school graduates in the state makes it imperative for the community and technical college system to focus on increasing the numbers of adults who enroll and who complete programs to earn a degree or industry-recognized certificate within six years.

(b) In carrying out their mission, the governing boards of the community and technical colleges shall collaborate with public high schools and career and technical centers to deliver services effectively and efficiently in the locations where they are needed most.

§18B-3C-2. Legislative intent.

The following comprise the intent of the Legislature in enacting this article:

(a) To establish community and technical college education that is well articulated with the public schools, the career and technical education centers and other state institutions of higher education; that encourages traditional and nontraditional students and adult learners to pursue a lifetime of learning; that serves as an instrument of economic development; and that has the independence and flexibility to respond quickly to changing needs of citizens and employers in the state;

(b) To establish community and technical college/career and technical education consortia districts for each of the community and technical colleges in order to ensure that the full range of community and technical college education programs and services is provided in all areas of the state, including the implementation of seamless programs of study as exemplified by West Virginia EDGE, established in article thirteen, chapter eighteen of this code and the Collaborative Degree Completion Program, established in article three-b of this chapter;

(c) To define the full range of programs and services that each community and technical college has the responsibility to provide; and

(d) To establish other policies and procedures necessary to ensure that the needs of West Virginia, its people and its businesses are met for the programs and services that can be provided through a comprehensive system of community and technical colleges.

§18B-3C-4. Community and technical college/career and technical education consortia planning districts.

(a) Unless otherwise designated, the presidents of each the community and technical college facilitates colleges facilitate the formation of community and technical college/career and technical education consortia in the state. which Each consortium includes representatives of community and technical colleges, public vocational-technical career and technical education centers and public state baccalaureate institutions offering associate degrees. The community and technical college consortium shall consortium is responsible for carrying out the following actions:

(1) Complete Completing a comprehensive assessment of the district to determine what education and training programs are necessary to meet the short- and long-term workforce development needs of the district;

(2) Coordinate Coordinating efforts with regional labor market information systems to identify the ongoing needs of business and industry, both current and projected, and to provide information to assist in an informed program of planning and decision-making;

(3) Plan and develop Planning and developing a unified effort between the community and technical colleges and public vocational-technical career and technical education to meet the documented workforce development needs of the district through individual and cooperative programs; shared facilities, faculty, staff, equipment and other resources; and the development and use of distance learning and other education technologies;

(4) Collaborating and developing jointly the collaborative programming for adults between the community and technical colleges and the public career and technical centers. The focus of these collaborative efforts is the development of advanced skill programming that builds on the secondary curriculum and allows career and technical education graduates to acquire more in-depth preparation in their occupational area of interest;

(4) Regularly review and revise

(5) As a consortium, regularly reviewing and revising curricula to ensure that the work force needs are met; develop developing new programs and phase out or modify phasing out or modifying existing programs, as appropriate, to meet such needs; and streamline streamlining procedures for designing and implementing customized training programs;

(5) Increase

(6) Increasing the integration of secondary and post-secondary curriculum and programs that are targeted to meet regional labor market needs, including implementation of seamless curricula projects implementing seamless programs of study, in all major career pathways including West Virginia EDGE, Earn a Degree, Graduate Early Program and the Collaborative Degree Completion Program:

(A) Research shows that well-planned, well-coordinated programs of study have a positive impact on school attendance, student grades, achievement scores, retention rates and career planning. To be successful, programs of study must include coherent and rigorous content aligned with challenging academic standards and relevant career and technical education content. They must provide for student movement through a coordinated, nonduplicative progression of courses that align secondary education with community and technical college education to prepare students to succeed at the community and technical college level and in high-wage, high-demand occupations;

(B) Therefore, the focus of each consortium is to identify the high-demand, high-wage occupations within the service district and develop programs of study, based on the findings, that lead to an industry-recognized credential, a certificate of applied science degree or an associate degree;

(C) The initial consortium compact and each annual update required in subsection (d) of this section shall identify the programs of study that are to be implemented in the district service area;

(6) Planning and implementing

(7) Planning and implementing integrated professional development activities for secondary and post-secondary faculty, staff and administrators;

(7) Ensure

(8) Ensuring that program graduates have attained the competencies required for successful employment through the involvement of business, industry and labor in establishing student credentialing;

(8) Performance assessment of

(9) Assessing student knowledge and skills which may be gained from multiple sources so that students gain credit toward program completion and advance more rapidly without repeating course work in which they already possess competency;

(9) Cooperate

(10) Cooperating with workforce investment boards in establishing to establish one-stop-shop career centers with integrated employment and training and labor market information systems that enable job seekers to assess their skills, identify and secure needed education training, and secure employment, and that allow employers to locate available workers;

(10) Increase

(11) Increasing the integration of adult literacy, adult basic education, federal Work Force Investment Act and community and technical college programs and services to expedite the transition of adults from welfare to gainful employment, and including cooperating with the State Department of Education to provide adult basic education programs on each community and technical college campus in the state where developmental education services are provided; and

(11) Establish

(12) Establishing a single point of contact for employers and potential employers to access education and training programs throughout the district.

(b) The community and technical college education consortium shall cooperate with the regional workforce investment board in the district and shall participate in any development or amendment to the regional workforce investment plan.

(c) To carry out the provisions of this section, community and technical college/career and technical education consortia planning districts are established and defined as follows:

(1) Northern Panhandle Community and Technical College District includes Hancock, Brooke, Ohio, Marshall and Wetzel counties.

(A) The facilitating institution is West Virginia Northern Community and Technical College.

(B) Participating institutions include West Virginia Northern Community and Technical College; John Marshall High School; Cameron High School; John D. Rockefeller IV Career Center; and other public vocational schools career and technical centers offering post-secondary programs.

(2) North Central West Virginia Community and Technical College District includes Monongalia, Marion, Preston, Taylor, Barbour, Randolph, Doddridge, Harrison, Braxton, Lewis, Calhoun, Gilmer and Upshur counties.

(A) The facilitating institution is Pierpont Community and Technical College. a division of Fairmont State University.

(B) Participating institutions include Pierpont Community and Technical College a division of Fairmont State University; Glenville State College; Randolph County Vocational- Technical Center; Monongalia County Technical Education Center; United Technical Center; Marion County Technical Center; Fred W. Eberly Eberle Technical Center; Calhoun Gilmer Career Center; Taylor County Technical Center; and other public vocational schools career and technical centers offering post-secondary programs.

(3) Mid-Ohio Valley Community and Technical College District includes Tyler, Pleasants, Ritchie, Wood, Wirt, Jackson and Roane counties.

(A) The facilitating institution is West Virginia University at Parkersburg.

(B) Participating institutions include West Virginia University at Parkersburg; West Virginia Northern Community and Technical College; Roane-Jackson Technical Center; Gaston Caperton Center; Wood County Technical Center; Mid Ohio Valley Technical Institute and other public vocational schools career and technical centers offering post-secondary programs.

(4) Potomac Highlands Community and Technical College District includes Tucker, Pendleton, Grant, Hardy, Mineral and Hampshire counties.

(A) The facilitating institution is Eastern West Virginia Community and Technical College.

(B) Participating institutions include Eastern West Virginia Community and Technical College; South Branch Career and Technical Center; Mineral County Technical Center; and other public vocational schools career and technical centers offering post-secondary programs.

(5) Shenandoah Valley Community and Technical College District includes Berkeley, Jefferson and Morgan counties.

(A) The facilitating institution is Blue Ridge Community and Technical College.

(B) Participating institutions include Blue Ridge Community and Technical College; James Rumsey Technical Institute; and other public vocational schools career and technical centers offering post-secondary programs.

(6) Advantage Valley Community and Technical College District includes Fayette, Kanawha, Clay, Putnam, Cabell, Mason and Wayne counties.

(A) The facilitating institution is Marshall for Cabell, Mason and Wayne counties is Mountwest Community and Technical College. The facilitating institutions for Clay, Fayette, Kanawha and Putnam counties are Bridgemont Community and Technical College and Kanawha Valley Community and Technical College.

(B) Every five years the council shall:

(i) Evaluate the progress of the Advantage Valley Consortia toward achieving the goals and benchmarks of its compact;

(ii) Evaluate the progress of each community and technical college in the district toward achieving the goals and benchmarks of its institutional compact;

(iii) Determine which community and technical college in the district would best serve the needs of the district for the following five-year period if serving as the facilitating institution; and

(iv) Designate the community and technical college selected pursuant to subparagraph (iii) of this paragraph to serve as the facilitating institution for the following five-year period.

(C) Participating institutions include Marshall Mountwest Community and Technical College; the Bridgemont Community and Technical College; at West Virginia University Institute of Technology; West Virginia State Kanawha Valley Community and Technical College; Carver Career and Technical Education Center; Garnet Career Center; Ben Franklin Career and Technical Center; Putnam County Vocational-Technical-Occupational Career and Technical Center; Cabell County Career-Technical Career-Technology Center; Mason County Career Center; and other public vocational schools career and technical centers offering post-secondary programs.

(7) Southern Mountains Community and Technical College District includes Lincoln, Boone, Logan, Mingo, Wyoming and McDowell counties.

(A) The facilitating institution is Southern West Virginia Community and Technical College.

(B) Participating institutions include Southern West Virginia Community and Technical College; New River Community and Technical College; Boone County Career and Technical Center; Wyoming County Vocational- Career and Technical Center; Ralph R. Willis Career and Technical Center; McDowell County Career and Technology Center; Mingo County Vocation-Technical Extended Learning Center; Charles Yeager Technical Center and other public vocational schools career and technical centers offering post-secondary programs.

(8) Southeastern Community and Technical College District includes Raleigh, Summers, Fayette, Nicholas, Webster, Pocahontas, Greenbrier, Monroe and Mercer counties.

(A) The facilitating institution is New River Community and Technical College.

(B) Participating institutions include New River Community and Technical College; Southern West Virginia Community and Technical College; the Bridgemont Community and Technical College; at West Virginia University Institute of Technology; Bluefield State College; Academy of Careers and Technology; Fayette Plateau Vocation-Technology Center Institute of Technology; Summers County High School; Monroe County Technical Center; Mercer County Technical Education Center; Nicholas County Career and Technical Center; and other public vocational schools career and technical centers offering post-secondary programs.

(9) Cochairs preside over each consortium as follows:

(A) The president of the facilitating community and technical college, or his or her designee; and

(B) A career and technical education center administrator, or his or her designee, representing one of the participating institutions and selected by the consortium administrative leaders.

(d) In the role of the facilitating institution of the community and technical college district consortium, the college:

(1) Communicates to the Council and State Board;

(2) Facilitates the delivery of comprehensive community and technical college education in the region, which includes the seven areas of comprehensive community and technical college education delivery as required by section six of this article; and

(3) Facilitates development of a statement of commitment signed by all participating institutions in the region as to how setting forth how community and technical college education will be delivered; and

(4) Facilitates the development of a consortium compact to be submitted to the Council and State Board before July 1, 2012, and annually thereafter.

(e) Participating institutions are not subordinate to the facilitating institution but will shall sign the statement of commitment to participate.

(f) The council shall: The Council is responsible for carrying out the following activities:

(1) Maintain guidelines for community and technical college consortia development; Annually evaluating the progress made in meeting the compact goals for each consortium through the development and collection of performance indicator data; and

(2) Set goals for each consortium based upon legislative goals for the delivery of comprehensive community and technical college education; and

(3) (2) Maintain a Providing each consortium with a model format for developing and revising a consortium compact outlining plans strategies and procedures for achieving stated goals. to The compact shall be submitted to the Council annually for approval (g) On or before November 15 each year each consortium shall submit to the council for approval a compact which outlines plans for obtaining the stated goals. and State Board for their respective approvals before July 1, 2012, and annually thereafter. The Council is responsible for approving the compact components related to community and technical college education. The State Board is responsible for approving the compact components related to career and technical education. Each compact shall include the implementation of seamless curricula projects programs of study, the Collaborative Degree Completion Program and the West Virginia EDGE Earn a Degree, Graduate Early Program.

(h) The council annually shall evaluate the progress made in meeting the compact goals for each community and technical college consortia through the development and collection of performance indicator data.

ARTICLE 14. MISCELLANEOUS.

§18B-14-1. Select committee on outcomes-based funding models in higher education.

(a) The Legislature makes the following findings regarding public higher education:

(1) It is in the best interest of the citizens to have an effective and comprehensive system for the delivery of public higher education services. In order to achieve desired goals of economic growth and societal well being, it is critical that more citizens have some level of education beyond high school.

(2) In Senate Bill 595 (Vision 2020), enacted in 2008 regular session, state policymakers established detailed goals and objectives that state institutions are expected to work toward achieving by the year 2020. Vision 2020 also provides mechanisms for measuring success and for holding the state systems of higher education accountable. It establishes clear-cut connections between the budget cycle, the goals and objectives and both positive and negative consequences.

(3) A variety of policy tools are available to influence and direct public higher education behavior, including organizing institutions into functional systems, creating governance structures and mechanisms designed to ensure that these systems and individual institutions focus on the public policy agenda and establishing outcomes-based goals, accountability measures and regulatory devices.

(4) While these policy tools are useful, they are not sufficient to influence institutions, students and employers to behave in ways consistent with achieving the goals and objectives of Vision 2020 the public policy agenda. Resources appropriated to public higher education are used most effectively and efficiently when the attention of state colleges and universities is focused on meeting established priorities. This focus is developed and sustained only when the state financing policy contains a direct connection between the Legislature’s power to appropriate money and desired institutional outcomes. Unlike rules which can be bent; law can be creatively interpreted; accountability requirements which can lose their effectiveness as they are filtered through layers of bureaucracy; and responsibility for implementation which is divided among agencies and, ultimately, is totally dependent upon institutional discretion, a financing policy that ties the flow of funds directly to progress on achieving established state goals and objectives commands immediate attention.

(b) It is the constitutional responsibility of the Legislature to determine how to make the best use of available resources to meet state needs and established goals; therefore, the Joint Committee on Government and Finance shall create a select committee for the two-fold purpose of making a specific and detailed analysis of outcomes-based funding models used in higher education and providing recommendations to the Legislature on incorporating one or more of these models as an effective piece of the state’s financing policy.

(1) The President of the Senate or designee;

(2) The Speaker of the House of Delegates or designee;

(3) The chairs of the Senate and House of Delegates Committees on Education, who shall cochair the committee;

(4) The vice chairs of the Senate and House of Delegates Committees on Education;

(5) The chairs of the Senate and House of Delegates Committees on Finance or their designees;

(6) The cochairs of the Joint Commission on Economic Development or their designees;

(7) Two members each from the Senate Committees on Finance and Education appointed by the President of the Senate; and

(8) Two members each from the House Committees on Finance and Education appointed by the Speaker of the House.

(d) The select committee shall develop a report with recommendations on implementing a state-level financing plan which includes, but is not limited to, the following items:

(1) A review of existing outcomes-based funding models for institutions and systems of higher education;

(2) Identification of the top three to five public policy objectives that are to be the focus of the financing policy;

(3) A review of outcomes-based funding models implemented in other states, including an evaluation of the degree to which these policies have succeeded in influencing institutional and system behavior;

(4) Recommendations on methods to balance the inherent need of institutions for stability with the demands of the state for services as identified in Vision 2020 and the public policy agenda;

(5) Recommendations on methods to develop a workable balance between addressing the well-being of institutions and the success of students; and

(6) An analysis of the impact of different models on institutions with widely-differing missions, including recommendations on selecting and implementing the appropriate model for each type of institution specifically noting the impact of selected models on community and technical colleges, baccalaureate colleges and regional universities, and research universities.

(e) The committee shall commence its work before May 15, 2012, and shall deliver its report and recommendations, together with draft legislation to implement the recommendations, to the Legislative Oversight Commission on Education Accountability and the Joint Committee on Government and Finance by December 1, 2012.

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

Engrossed Senate Bill No. 436, as amended by the House of Delegates, was then put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 436) passed with its title.

Senator Unger moved that the bill take effect from passage.

The nays were: None.

Absent: None.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 436) takes effect from passage.

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

Eng. Com. Sub. for Senate Bill No. 484, Relating generally to child welfare.

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

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

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

That §49-5-21 of the Code of West Virginia, 1931, as amended, be repealed; that §49-6-5a of said code be repealed; that §49-1-3 of said code be amended and reenacted; that §49-2-17 of said code be amended and reenacted; that §49-5-13 of said code be amended and reenacted; that §49-5D-2, §49-5D-3 and §49-5D-3a of said code be amended and reenacted; that said code be amended by adding thereto two new sections, designated §49-5D-3b and §49-5D-3c; that §49-6-2, §49-6-3, §49-6-5, §49-6-6, §49-6-8 and §49-6-12 of said code be amended and reenacted; that §49-6A-5 of said code be amended and reenacted; that §49-6D-3 of said code be amended and reenacted; that §49-7-1 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §49-7-36, all to read as follows:

ARTICLE 1. PURPOSES AND DEFINITIONS.

§49-1-3. Definitions relating to abuse and neglect.

(1) "Abused child" means a child whose health or welfare is harmed or threatened by:

(A) A parent, guardian or custodian who knowingly or intentionally inflicts, attempts to inflict or knowingly allows another person to inflict, physical injury or mental or emotional injury, upon the child or another child in the home;

(B) Sexual abuse or sexual exploitation;

(C) The sale or attempted sale of a child by a parent, guardian or custodian in violation of section sixteen, article four, chapter forty-eight of this code; or

(D) Domestic violence as defined in section two hundred two, article twenty-seven, chapter forty-eight of this code.

In addition to its broader meaning, physical injury may include an injury to the child as a result of excessive corporal punishment.

(2) "Abusing parent" means a parent, guardian or other custodian, regardless of his or her age, whose conduct, as alleged in the petition charging child abuse or neglect, has been adjudged by the court to constitute child abuse or neglect.

(3) "Battered parent" means a parent, guardian or other custodian who has been judicially determined not to have condoned the abuse or neglect and has not been able to stop the abuse or neglect of the child or children due to being the victim of domestic violence as defined by section two hundred two, article twenty-seven, chapter forty-eight of this code, which domestic violence was perpetrated by the person or persons determined to have abused or neglected the child or children.

(4) "Child abuse and neglect" or "child abuse or neglect" means physical injury, mental or emotional injury, sexual abuse, sexual exploitation, sale or attempted sale or negligent treatment or maltreatment of a child by a parent, guardian or custodian who is responsible for the child's welfare, under circumstances which harm or threaten the health and welfare of the child.

(5) "Child abuse and neglect services" means social services which are directed toward:

(A) Protecting and promoting the welfare of children who are abused or neglected;

(B) Identifying, preventing and remedying conditions which cause child abuse and neglect;

(C) Preventing the unnecessary removal of children from their families by identifying family problems and assisting families in resolving problems which could lead to a removal of children and a breakup of the family;

(D) In cases where children have been removed from their families, providing services to the children and the families so as to reunify such children with their families or some portion thereof;

(E) Placing children in suitable adoptive homes when reunifying the children with their families, or some portion thereof, is not possible or appropriate; and

(F) Assuring the adequate care of children who have been placed in the custody of the department or third parties.

(6) "Child advocacy center (CAC)" means a community-based organization that is a member in good standing with the West Virginia Child Abuse Network, Inc., and is working to implement the following program components:

(A) Child-appropriate/child-friendly facility: A child advocacy center provides a comfortable, private, child-friendly setting that is both physically and psychologically safe for clients.

(B) Multidisciplinary team (MDT): A multidisciplinary team for response to child abuse allegations includes representation from the following: Law enforcement; child protective services; prosecution; mental health; medical; victim advocacy; child advocacy center.

(C) Organizational capacity: A designated legal entity responsible for program and fiscal operations has been established and implements basic sound administrative practices.

(D) Cultural competency and diversity: The CAC promotes policies, practices and procedures that are culturally competent. Cultural competency is defined as the capacity to function in more than one culture, requiring the ability to appreciate, understand and interact with members of diverse populations within the local community.

(E) Forensic interviews: Forensic interviews are conducted in a manner which is of a neutral, fact-finding nature and coordinated to avoid duplicative interviewing.

(F) Medical evaluation: Specialized medical evaluation and treatment are to be made available to CAC clients as part of the team response, either at the CAC or through coordination and referral with other specialized medical providers.

(G) Therapeutic intervention: Specialized mental health services are to be made available as part of the team response, either at the CAC or through coordination and referral with other appropriate treatment providers.

(H) Victim support/advocacy: Victim support and advocacy are to be made available as part of the team response, either at the CAC or through coordination with other providers, throughout the investigation and subsequent legal proceedings.

(I) Case review: Team discussion and information sharing regarding the investigation, case status and services needed by the child and family are to occur on a routine basis.

(J) Case tracking: CACs must develop and implement a system for monitoring case progress and tracking case outcomes for team components: Provided, That a child advocacy center may establish a safe exchange location for children and families who have a parenting agreement or an order providing for visitation or custody of the children that require a safe exchange location.

(7) “Court appointed special advocate (CASA) program” means a community organization that screens, trains and supervises CASA volunteers to advocate for the best interests of children who are involved in abuse and neglect proceedings. Court appointed special advocate programs will be operated under the following guidelines:

(A) Standards: CASA programs shall be members in good standing with the West Virginia Court Appointed Special Advocate Association, Inc., and the National Court Appointed Special Advocates Association and adhere to all standards set forth by these entities.

(B) Organizational capacity: A designated legal entity responsible for program and fiscal operations has been established and implements basic sound administrative practice.

(C) Cultural competency and diversity: CASA programs promote policies, practices and procedures that are culturally competent. “Cultural competency” is defined as the capacity to function in more than one culture, requiring the ability to appreciate, understand and interact with members of diverse populations within the local community.

(D) Case management: CASA programs must utilize a uniform case management system to monitor case progress and track outcomes.

(E) Case review: CASA volunteers meet with CASA staff on a routine basis to discuss case status and outcomes.

(F) Training: Court appointed special advocates shall serve as volunteers without compensation and shall receive training consistent with state and nationally developed standards.

(7) (8) "Imminent danger to the physical well being of the child" means an emergency situation in which the welfare or the life of the child is threatened. Such emergency situation exists when there is reasonable cause to believe that any child in the home is or has been sexually abused or sexually exploited, or reasonable cause to believe that the following conditions threaten the health or life of any child in the home:

(A) Nonaccidental trauma inflicted by a parent, guardian, custodian, sibling or a babysitter or other caretaker;

(B) A combination of physical and other signs indicating a pattern of abuse which may be medically diagnosed as battered child syndrome;

(D) Abandonment by the parent, guardian or custodian;

(E) Inadequate treatment of serious illness or disease;

(F) Substantial emotional injury inflicted by a parent, guardian or custodian;

(G) Sale or attempted sale of the child by the parent, guardian or custodian; or

(H) The parent, guardian or custodian abuse of alcohol or drugs or other controlled substance as defined in section one hundred one, article one, chapter sixty-a of this code, has impaired his or her parenting skills to a degree as to pose an imminent risk to a child’s health or safety.

(8) (9) "Legal guardianship" means the permanent relationship between a child and caretaker, established by order of the circuit court having jurisdiction over the child, pursuant to the provisions of this chapter and chapter forty-eight of this code.

(9) (10) "Multidisciplinary team" means a group of professionals and paraprofessionals representing a variety of disciplines who interact and coordinate their efforts to identify, diagnose and treat specific cases of child abuse and neglect. Multidisciplinary teams may include, but are not limited to, medical, educational, child care and law-enforcement personnel, social workers, psychologists and psychiatrists. Their goal is to pool their respective skills in order to formulate accurate diagnoses and to provide comprehensive coordinated treatment with continuity and followup for both parents and children. "Community team" means a multidisciplinary group which addresses the general problem of child abuse and neglect in a given community and may consist of several multidisciplinary teams with different functions.

(10) (11) (A) "Neglected child" means a child:

(i) Whose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child's parent, guardian or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or education, when such refusal, failure or inability is not due primarily to a lack of financial means on the part of the parent, guardian or custodian; or

(ii) Who is presently without necessary food, clothing, shelter, medical care, education or supervision because of the disappearance or absence of the child's parent or custodian;

(B) "Neglected child" does not mean a child whose education is conducted within the provisions of section one, article eight, chapter eighteen of this code.

(11) (l2) “Parent” means an individual defined has a parent by law or on the basis of a biological relationship, marriage to a person with a biological relationship, legal adoption or other recognized grounds.

(12) (13) “Parental rights” means any and all rights and duties regarding a parent to a minor child, including, but not limited to, custodial rights and visitational rights and rights to participate in the decisions affecting a minor child.

(13) (14) "Parenting skills" means a parent's competencies in providing physical care, protection, supervision and psychological support appropriate to a child's age and state of development.

(14) (15) "Sexual abuse" means:

(A) As to a child who is less than sixteen years of age, any of the following acts which a parent, guardian or custodian shall engage in, attempt to engage in or knowingly procure another person to engage in, with such child, notwithstanding the fact that the child may have willingly participated in such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct:

(i) Sexual intercourse;

(ii) Sexual intrusion; or

(iii) Sexual contact;

(B) As to a child who is sixteen years of age or older, any of the following acts which a parent, guardian or custodian shall engage in, attempt to engage in or knowingly procure another person to engage in, with such child, notwithstanding the fact that the child may have consented to such conduct or the fact that the child may have suffered no apparent physical injury or mental or emotional injury as a result of such conduct:

(i) Sexual intercourse;

(ii) Sexual intrusion; or

(iii) Sexual contact;

(C) Any conduct whereby a parent, guardian or custodian displays his or her sex organs to a child, or procures another person to display his or her sex organs to a child, for the purpose of gratifying the sexual desire of the parent, guardian or custodian, of the person making such display, or of the child, or for the purpose of affronting or alarming the child.

(15) (16) "Sexual contact" means sexual contact as that term is defined in section one, article eight-b, chapter sixty-one of this code.

(16) (17) "Sexual exploitation" means an act whereby:

(A) A parent, custodian or guardian, whether for financial gain or not, persuades, induces, entices or coerces a child to engage in sexually explicit conduct as that term is defined in section one, article eight-c, chapter sixty-one of this code;

(B) A parent, guardian or custodian persuades, induces, entices or coerces a child to display his or her sex organs for the sexual gratification of the parent, guardian, custodian or a third person, or to display his or her sex organs under circumstances in which the parent, guardian or custodian knows such display is likely to be observed by others who would be affronted or alarmed.

(17) (18) "Sexual intercourse" means sexual intercourse as that term is defined in section one, article eight-b, chapter sixty-one of this code.

(18) (19)"Sexual intrusion" means sexual intrusion as that term is defined in section one, article eight-b, chapter sixty-one of this code.

(19) (20) “Placement” means any temporary or permanent placement of a child who is in the custody of the state in any foster home, group home or other facility or residence.

(20) (21) "Serious physical abuse" means bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ.

(21) (22) "Siblings" means children who have at least one biological parent in common or who have been legally adopted by the same parents or parent.

(22) (23) "Time-limited reunification services" means individual, group and family counseling, inpatient, residential or outpatient substance abuse treatment services, mental health services, assistance to address domestic violence, services designed to provide temporary child care and therapeutic services for families, including crisis nurseries and transportation to or from any such services, provided during fifteen of the most recent twenty-two months a child has been in foster care, as determined by the earlier date of the first judicial finding that the child is subjected to abuse or neglect, or the date which is sixty days after the child is removed from home.

ARTICLE 2. STATE RESPONSIBILITIES FOR THE PROTECTION AND CARE OF CHILDREN.

§49-2-17. Subsidized adoption and legal guardianship.

(a) From funds appropriated to the Department of Health and Human Resources, the secretary shall establish a system of assistance for facilitating the adoption or legal guardianship of children. An adoption subsidy shall be available for children who are legally free for adoption and who are dependents of the department or a child welfare agency licensed to place children for adoption. A legal guardianship subsidy shall not require the surrender or termination of parental rights. For either subsidy, the children must be in special circumstances either because they one or more of the following conditions inhibit their adoption or legal guardianship placement:

(a) Have established emotional ties with prospective adoptive parents or prospective legal guardians while in their care; or

(b) Are not likely to be adopted or become a ward of a legal guardian by reason of one or more of the following conditions:

(1) They have a physical or mental disability;

(2) They are emotionally disturbed;

(3) They are older children;

(4) They are a part of a sibling group; or

(5) They are a member of a racial or ethnic minority.; or

(6) They have any combination of these conditions.

(b) The department shall provide assistance in the form of subsidies or other services to parents who are found and approved for adoption or legal guardianship of a child certified as eligible for subsidy by the department, but before the final decree of adoption or order of legal guardianship is entered, there must be a written agreement between the family entering into the subsidized adoption or legal guardianship and the department. Adoption or legal guardianship subsidies in individual cases may commence with the adoption or legal guardianship placement, and will vary with the needs of the child as well as the availability of other resources to meet the child's needs. The subsidy may be for special services only, or for money payments, and either for a limited period, or for a long term, or for any combination of the foregoing. The specific financial terms of the subsidy shall be included in the agreement between the department and the adoptive parents or legal guardians. The agreement may recognize and provide for direct payment by the department of attorney’s fees to an attorney representing the adoptive parent. The amount of the time-limited or long-term subsidy may in no case exceed that which would be allowable from time to time for such child under foster family care or, in the case of a special service, the reasonable fee for the service rendered. In addition, the department shall provide either Medicaid or other health insurance coverage for any special needs child for whom there is an adoption or legal guardianship assistance agreement between the department and the adoptive parent or legal guardian and who the department determines cannot be placed with an adoptive parent or legal guardian without medical assistance because the child has special needs for medical, mental health or rehabilitative care.

Whenever significant emotional ties have been established between a child and his or her foster parents, and the foster parents seek to adopt the child or to become legal guardians, the child shall be certified as eligible for a subsidy conditioned upon his or her adoption or his or her becoming a ward of a legal guardian under applicable procedures by the foster parents.

In all other cases, (c) After reasonable efforts have been made without the use of subsidy and no appropriate adoptive family or legal guardian has been found for the child, the department shall certify the child as eligible for a subsidy in the event of adoption or a legal guardianship: Provided, that reasonable efforts to place a child without a subsidy shall not be required if it is in the best interest of the child because of such factors as the existence of significant emotional ties developed between the child and the prospective parent or guardian while in care as a foster child.

(d) If the child is the dependent of a voluntary licensed child-placing agency, that agency shall present to the department evidence of significant emotional ties between the child and his foster parents or evidence of the inability to place the child for adoption or legal guardianship without the use of subsidy or evidence that such efforts would not be in the best interests of the child. In no event shall the value of the services and assistance provided by the department under an agreement pursuant to this section exceed the value of assistance available to foster families in similar circumstances. All records regarding subsidized adoptions or legal guardianships shall be held in confidence; however, records regarding the payment of public funds for subsidized adoptions or legal guardianships shall be available for public inspection provided they do not directly or indirectly identify any child or persons receiving funds for such child.

ARTICLE 5. JUVENILE PROCEEDINGS.

§49-5-13. Disposition of juvenile delinquents; appeal.

(a) In aid of disposition of juvenile delinquents, the juvenile probation officer assigned to the court shall, upon request of the court, make an investigation of the environment of the juvenile and the alternative dispositions possible. The court, upon its own motion, or upon request of counsel, may order a psychological examination of the juvenile. The report of such examination and other investigative and social reports shall not be made available to the court until after the adjudicatory hearing. Unless waived, copies of the report shall be provided to counsel for the petitioner and counsel for the juvenile no later than seventy-two hours prior to the dispositional hearing.

(b) Following the adjudication, the court shall conduct the dispositional proceeding, giving all parties an opportunity to be heard. In disposition the court shall not be limited to the relief sought in the petition and shall, in electing from the following alternatives, consider the best interests of the juvenile and the welfare of the public:

(1) Dismiss the petition;

(2) Refer the juvenile and the juvenile's parent or custodian to a community agency for needed assistance and dismiss the petition;

(3) Upon a finding that the juvenile is in need of extra-parental supervision: (A) Place the juvenile under the supervision of a probation officer of the court or of the court of the county where the juvenile has his or her usual place of abode or other person while leaving the juvenile in custody of his or her parent or custodian; and (B) prescribe a program of treatment or therapy or limit the juvenile's activities under terms which are reasonable and within the child's ability to perform, including participation in the litter control program established pursuant to section three, article fifteen-a, chapter twenty-two of this code or other appropriate programs of community service;

(4) Upon a finding that a parent or custodian is not willing or able to take custody of the juvenile, that a juvenile is not willing to reside in the custody of his or her parent or custodian or that a parent or custodian cannot provide the necessary supervision and care of the juvenile, the court may place the juvenile in temporary foster care or temporarily commit the juvenile to the department or a child welfare agency. The court order shall state that continuation in the home is contrary to the best interest of the juvenile and why; and whether or not the department made a reasonable effort to prevent the placement or that the emergency situation made such efforts unreasonable or impossible. Whenever the court transfers custody of a youth to the department, an appropriate order of financial support by the parents or guardians shall be entered in accordance with section five, article seven of this chapter and guidelines promulgated by the Supreme Court of Appeals;

(5) Upon a finding that the best interests of the juvenile or the welfare of the public require it, and upon an adjudication of delinquency pursuant to subdivision (1), section four, article one of this chapter, the court may commit the juvenile to the custody of the Director of the Division of Juvenile Services for placement in a juvenile services facility for the treatment, instruction and rehabilitation of juveniles: Provided, That the court maintains discretion to consider alternative sentencing arrangements. Notwithstanding any provision of this code to the contrary, in the event that the court determines that it is in the juvenile's best interests or required by the public welfare to place the juvenile in the custody of the Division of Juvenile Services, the court shall provide the Division of Juvenile Services with access to all relevant court orders and records involving the underlying offense or offenses for which the juvenile was adjudicated delinquent, including sentencing and presentencing reports and evaluations, and provide the division with access to school records, psychological reports and evaluations, medical reports and evaluations or any other such records as may be in the court's possession as would enable the Division of Juvenile Services to better assess and determine the appropriate counseling, education and placement needs for the juvenile offender. Commitments shall not exceed the maximum term for which an adult could have been sentenced for the same offense and any such maximum allowable sentence to be served in a juvenile correctional facility may take into account any time served by the juvenile in a detention center pending adjudication, disposition or transfer. The order shall state that continuation in the home is contrary to the best interests of the juvenile and why; and whether or not the state department made a reasonable effort to prevent the placement or that the emergency situation made such efforts unreasonable or impossible; or

(6) After a hearing conducted under the procedures set out in subsections (c) and (d), section four, article five, chapter twenty-seven of this code, commit the juvenile to a mental health facility in accordance with the juvenile's treatment plan; the director of the mental health facility may release a juvenile and return him or her to the court for further disposition. The order shall state that continuation in the home is contrary to the best interests of the juvenile and why; and whether or not the state department made a reasonable effort to prevent the placement or that the emergency situation made such efforts unreasonable or impossible.

(c) In any case in which the court decides to order the juvenile placed in an out-of-state facility or program, it shall set forth in the order directing the placement the reasons the juvenile was not placed in an in-state facility or program.

(c) (d) The disposition of the juvenile shall not be affected by the fact that the juvenile demanded a trial by jury or made a plea of denial. Any dispositional order is subject to appeal to the Supreme Court of Appeals.

(d) (e) Following disposition, the court shall inquire whether the juvenile wishes to appeal and the response shall be transcribed; a negative response shall not be construed as a waiver. The evidence shall be transcribed as soon as practicable and made available to the juvenile or his or her counsel, if the same is requested for purposes of further proceedings. A judge may grant a stay of execution pending further proceedings.

(e) (f) Notwithstanding any other provision of this code to the contrary, if a juvenile charged with delinquency under this chapter is transferred to adult jurisdiction and there tried and convicted, the court may make its disposition in accordance with this section in lieu of sentencing such person as an adult.

ARTICLE 5D. MULTIDISCIPLINARY TEAMS.

§49-5D-2. Multidisciplinary investigative teams; establishment; procedures; coordination between agencies.

(a) The prosecuting attorney shall establish a multidisciplinary investigative team in each county. The multidisciplinary team shall be headed and directed by the prosecuting attorney or his or her designee and shall include as permanent members the prosecuting attorney or his or her designee, a local child protective services caseworker from the Department of Health and Human Resources; a local law-enforcement officer employed by a law-enforcement agency in the county; a child advocacy center representative, where available; a health care provider with pediatric and child abuse expertise, where available; a mental health professional with pediatric and child abuse expertise, where available; an educator and where appropriate to the particular case under consideration and available a representative from the a licensed domestic violence program serving the county. The Department of Health and Human Resources and any local law-enforcement agency or agencies selected by the prosecuting attorney shall appoint their representatives to the team by submitting a written designation of the team to the prosecuting attorney of each county within thirty days of the prosecutor's request that the appointment be made. Within fifteen days of the appointment, the prosecuting attorney shall notify the chief judge of each circuit within which the county is situated of the names of the representatives so appointed. Any other person or any other appointee of an agency who may contribute to the team's efforts to assist a minor child as may be determined by the permanent members of the team may also be appointed as a member of the team by the prosecutor with notification to the chief judge.

(b) Any permanent member of the multidisciplinary investigative team shall refer all cases of accidental death of any child reported to their agency and all cases when a child dies while in the custody of the state for investigation and review by the team. The multidisciplinary investigative team shall meet at regular intervals at least once every calendar month.

(c) The investigative team shall be responsible for coordinating or cooperating in the initial and ongoing investigation of all civil and criminal allegations pertinent to cases involving child sexual assault, child sexual abuse, child abuse and neglect and shall make a recommendation to the county prosecuting attorney as to the initiation or commencement of a civil petition and/or criminal prosecution.

(d) State, county and local agencies shall provide the multidisciplinary investigative team with any information requested in writing by the team as allowable by law or upon receipt of a certified copy of the circuit court's order directing said agencies to release information in its possession relating to the child. The team shall assure that all information received and developed in connection with the provisions of this article remains confidential. For purposes of this section, the term "confidential" shall be construed in accordance with the provisions of section one, article seven of this chapter.

§49-5D-3. Multidisciplinary treatment planning process.

(a) (1) A multidisciplinary treatment planning process for cases initiated pursuant to articles five and six of this chapter shall be established within each county of the state, either separately or in conjunction with a contiguous county, by the secretary of the department with advice and assistance from the prosecutor's advisory council as set forth in section four, article four, chapter seven of this code. The Division of Juvenile Services shall establish a similar treatment planning process for delinquency cases in which the juvenile has been committed to the custody of the director of the division its custody, including those cases in which the juvenile has been committed for examination and diagnosis.

(2) The provisions of this section do not require a multidisciplinary team meeting to be held prior to temporarily placing a child or juvenile out-of-home under exigent circumstances or upon a court order placing a juvenile in a facility operated by the Division of Juvenile Services.

(2) (b) The case manager in the Department of Health and Human Resources for the child, family or juvenile or the case manager in the Division of Juvenile Services for a juvenile shall convene a treatment team in each case when it is required pursuant to this article. Treatment teams shall assess, plan and implement a comprehensive, individualized service plan for children who are victims of abuse or neglect and their families when a judicial proceeding has been initiated involving the child or children for juveniles and their families involved in status offense or delinquency proceedings when, in a status offense proceeding, the court refers the juvenile for services pursuant to sections eleven and eleven-a, article five of this chapter and when, in a delinquency proceeding, the court is considering placing the juvenile in the department's custody or placing the juvenile out of home at the department's expense pursuant to the provisions of section thirteen of said article. In any such status offense or delinquency case, the juvenile probation officer shall notify the local office of the Department of Health and Human Resources and the Division of Juvenile Services at least five working days before the court proceeding in order to allow the multidisciplinary treatment team to convene and develop a comprehensive individualized service plan for the child: Provided, That such notice is not required in cases where the child is already in state custody or there exist exigent circumstances which justify taking the child immediately into custody without a judicial proceeding. In developing an individualized service plan for a child, the team shall utilize a uniform comprehensive assessment of the child. The department shall adopt a standard uniform comprehensive assessment instrument or protocol to be used by treatment teams.

(3) Prior to disposition, in each case in which a treatment planning team has been convened, the team shall advise the court as to the types of services the team has determined are needed and the type of placement, if any, which will best serve the needs of the child. If the team determines that an out-of-home placement will best serve the needs of the child, the team shall first consider placement at with appropriate relatives then with foster care homes, facilities or programs located within the state. The team may only recommend placement in an out-of-state facility if it concludes, after considering the best interests and overall needs of the child, that there are no available and suitable in-state facilities which can satisfactorily meet the specific needs of the child.

(b) Each treatment team shall be convened by the child's or family's case manager in the Department of Health and Human Resources or the Division of Juvenile Services if the juvenile has been ordered into its custody for examination and diagnosis pursuant to section thirteen, article five of this chapter. The treatment team shall consist of the child's custodial parent or parents, guardian or guardians, other immediate family members, the attorney or attorneys representing the child, the parent or parents of the child, the child's attorney, the guardian ad litem, if any, the prosecuting attorney or his or her designee, a member of a child advocacy center when the child has been processed through the child advocacy center program(s) and, where appropriate to the particular case under consideration and available, a court-appointed special advocate, a member of a child advocacy center, an appropriate school official and any other person or an agency representative who may assist in providing recommendations for the particular needs of the child and family. The child may participate in multidisciplinary treatment team meetings if such is deemed appropriate by the multidisciplinary treatment team. For purposes of delinquency proceedings, the juvenile probation officer shall be a member of the treatment team. Any person authorized by the provisions of this chapter to convene a multidisciplinary team meeting may seek and receive an order of the circuit court setting such meeting and directing attendance. Members of the multidisciplinary team may participate in team meetings by telephone or video conferencing: Provided, That a member of a child advocacy center should participate in any case when appropriate to the particular case under consideration. That the provisions of this subsection do not prevent the respective agencies from designating a person other than the case manager as a facilitator for treatment team meetings.

(c) The treatment team shall coordinate its activities and membership with local family resource networks and coordinate with other local and regional child and family service planning committees to assure the efficient planning and delivery of child and family services on a local and regional level.

(d) State, county and local agencies shall provide the multidisciplinary treatment teams with any information requested in writing by the team as allowable by law or upon receipt of a certified copy of the circuit court's order directing said agencies to release information in its possession relating to the child. The team shall assure that all information received and developed in connection with the provisions of this article remain confidential. For purposes of this section, the term “confidential” shall be construed in accordance with the provisions of section one, article seven of this chapter. The multidisciplinary treatment team shall be afforded access to information in the possession of the Department of Health and Human Services, Division of Juvenile Services, law-enforcement agencies and other state, county and local agencies; and the agencies shall cooperate in the sharing of information, as may be provided in sections three (d) and six, article five-d and section one, article seven, all of chapter forty-nine, and any other relevant provision of law. Any multidisciplinary team member who acquires confidential information shall not disclose such information except as permitted by the provisions of this code or court rules.

(e) Nothing in this section may be construed to require a multidisciplinary team meeting to be held prior to temporarily placing a child out-of-home under exigent circumstances or upon a court order placing the juvenile in a juvenile facility operated by the Division of Juvenile Services.

§49-5D-3a. Recommendation of team to the court; hearing requirement; required findings.

(a) In any case in which a multidisciplinary treatment team develops an individualized service plan for a child or family pursuant to the provisions of section three of this article, the court shall review the proposed service plan to determine if implementation of the plan is in the child's best interests. If the multidisciplinary team cannot agree on a plan or if the court determines not to adopt the team's recommendations, it shall, upon motion or sua sponte, schedule and hold within ten days of such determination, and prior to the entry of an order placing the child in the custody of the department or in an out-of-home setting, a hearing to consider evidence from the team as to its rationale for the proposed service plan. If, after a hearing held pursuant to the provisions of this section, the court does not adopt the teams's recommended service plan, it shall make specific written findings as to why the team's recommended service plan was not adopted.

(b) In any case in which the court decides to order the child placed in an out-of-state facility or program it shall set forth in the order directing the placement the reasons why the child was not placed in an in-state facility or program.

(c) Any member of the multidisciplinary treatment team who disagrees with recommendations of the team may inform the court of his or her own recommendations and objections to the team’s recommendations. The recommendations and objections of the dissenting team member may be made in a hearing on the record, made in writing and served upon each team member and filed with the court and indicated in the case plan, or both made in writing and indicated in the case plan. Upon receiving objections, the court will conduct a hearing pursuant to paragraph (a) of this section.

§49-5D-3b. Multidisciplinary treatment planning process involving child abuse and neglect.

(a) Within thirty days of the initiation of a judicial proceeding pursuant to article six of this chapter, the Department of Health and Human Services shall convene a multidisciplinary treatment team to assess, plan and implement a comprehensive, individualized service plan for children who are victims of abuse or neglect and their families. The multidisciplinary team shall obtain and utilize any assessments for the children or the adult respondents that it deems necessary to assist in the development of such a plan.

(b) In a case initiated pursuant to article six of this chapter, the treatment team shall consist of the child or family’s case manager in the Department of Health and Human Resources, the adult respondent or respondents, the child’s parent or parents, guardians, any copetitioners, custodial relatives of the child, foster or preadoptive parents, any attorney representing an adult respondent or other member of the treatment team, the child’s counsel or the guardian ad litem, the prosecuting attorney or his or her designee, a member of a child advocacy center when the child has been processed through the child advocacy center program or programs or it is otherwise appropriate that a member of the child advocacy center participate, any court-appointed special advocate assigned to a case, any other person entitled to notice and the right to be heard, an appropriate school official and any other person or agency representative who may assist in providing recommendations for the particular needs of the child and family, including domestic violence service providers. The child may participate in multidisciplinary treatment team meetings if the child’s participation is deemed appropriate by the multidisciplinary treatment team. Unless otherwise ordered by the court, a party whose parental rights have been terminated and his or her attorney shall not be given notice of a multidisciplinary treatment team meeting and does not have the right to participate in any treatment team meeting.

(c) Prior to disposition in each case which a treatment planning team has been convened, the team shall advise the court as to the types of services the team has determined are needed and the type of placement, if any, which will best serve the needs of the child. If the team determines that an out-of-home placement will best serve the needs of the child, the team shall first consider placement with appropriate relatives then with foster care homes, facilities or programs located within the state. The team may only recommend placement in an out-of-state facility if it concludes, after considering the best interests and overall needs of the child, that there are no available and suitable in-state facilities which can satisfactorily meet the specific needs of the child.

(d) The multidisciplinary treatment team shall submit written reports to the court as required by the rules governing this type of proceeding or by the court, and shall meet as often as deemed necessary but at least every three months until the case is dismissed from the docket of the court. The multidisciplinary treatment team shall be available for status conferences and hearings as required by the court.

(e) If a respondent or copetitioner admits the underlying allegations of child abuse or neglect, or both abuse and neglect, in the multidisciplinary treatment planning process, his or her statements not be used in any subsequent criminal proceeding against him or her, except for perjury or false swearing.

§49-5D-3c. Multidisciplinary treatment process for status offenders or delinquents.

(a) (1) When a juvenile is adjudicated as a status offender pursuant to section eleven-d, article five of this chapter, the Department of Health and Human Resources shall promptly convene a multidisciplinary treatment team and conduct an assessment, utilizing a standard uniform comprehensive assessment instrument or protocol, to determine the juvenile’s mental and physical condition, maturity and education level, home and family environment, rehabilitative needs and recommended service plan. Upon completion of the assessment, the treatment team shall prepare and implement a comprehensive, individualized service plan for the juvenile.

(2) When a juvenile is adjudicated as a delinquent or has been granted an improvement period pursuant to section nine, article five of this chapter, the court, either upon its own motion or motion of a party, may require the Department of Health and Human Resources to convene a multidisciplinary treatment team and conduct an assessment, utilizing a standard uniform comprehensive assessment instrument or protocol, to determine the juvenile’s mental and physical condition, maturity and education level, home and family environment, rehabilitative needs and recommended service plan. A referral to the Department of Health and Human Resources to convene a multidisciplinary treatment team and to conduct such an assessment shall be made when the court is considering placing the juvenile in the department’s custody or placing the juvenile out-of-home at the department’s expense pursuant to section thirteen, article five of this chapter. In any delinquency proceeding in which the court requires the Department of Health and Human Resources to convene a multidisciplinary treatment team, the probation officer shall notify the department at least fifteen working days before the court proceeding in order to allow the department sufficient time to convene and develop an individualized service plan for the juvenile.

(3) When a juvenile has been adjudicated and committed to the custody of the Director of the Division of Juvenile Services, including those cases in which the juvenile has been committed for examination and diagnosis, the Division of Juvenile Services shall promptly convene a multidisciplinary treatment team and conduct an assessment, utilizing a standard uniform comprehensive assessment instrument or protocol, to determine the juvenile’s mental and physical condition, maturity and education level, home and family environment, rehabilitative needs and recommended service plan. Upon completion of the assessment, the treatment team shall prepare and implement a comprehensive, individualized service plan for the juvenile.

(4) (A) The rules of juvenile procedure shall govern the procedure for obtaining an assessment of a juvenile, preparing an individualized service plan and submitting the plan and assessment to the court.

(B) In juvenile proceedings conducted pursuant to article five of this chapter, the treatment team shall consist of the juvenile, the juvenile’s case manager in the Department of Health and Human Resources or the Division of Juvenile Services, the juvenile’s parent or parents, guardian or guardians or custodial relatives, the juvenile’s attorney, any attorney representing a member of the treatment team, the prosecuting attorney or his or her designee, an appropriate school official and any other person or agency representative who may assist in providing recommendations for the particular needs of the juvenile and family, including domestic violence service providers. In delinquency proceedings, the probation officer shall be a member of a treatment team. When appropriate, the juvenile case manager in the Department of Health and Human Resources and the Division of Juvenile Services shall cooperate in conducting multidisciplinary treatment team meetings when it is in the juvenile’s best interest.

(C) Prior to disposition, in each case in which a treatment planning team has been convened, the team shall advise the court as to the types of services the team has determined are needed and type of placement, if any, which will best serve the needs of the child. If the team determines that an out-of-home placement will best serve the needs of the child, the team shall first consider placement at facilities or programs located within the state. The team may only recommend placement in an out-of-state facility if it concludes, after considering the best interests and overall needs of the child, that there are no available and suitable in-state facilities which can satisfactorily meet the specific needs of the child.

(D) The multidisciplinary treatment team shall submit written reports to the court as required by applicable law or by the court, shall meet with the court at least every three months, as long as the juvenile remains in the legal or physical custody of the state, and shall be available for status conferences and hearings as required by the court.

(E) In any case in which a juvenile has been placed out of his or her home except for a temporary placement in a shelter or detention center, the multidisciplinary treatment team shall cooperate with the state agency in whose custody the juvenile is placed to develop an after-care plan. The rules of juvenile procedure and section twenty, article five, chapter forty-nine of the code shall govern the development of an after-care plan for a juvenile, the submission of the plan to the court and any objection to the after-care plan.

(F) If a juvenile respondent admits the underlying allegations of the case initiated pursuant to article five, chapter forty-nine of this code in the multidisciplinary treatment planning process, his or her statements shall not be used in any juvenile or criminal proceedings against the juvenile, except for perjury or false swearing.

§49-6-2. Petition to court when child believed neglected or abused -- Right to counsel; improvement period; hearing; priority of proceeding; transcript.

(a) In any proceeding under the provisions of this article, the child, his or her or parents and his or her legally established custodian or other persons standing in loco parentis to him or her shall have the right to be represented by counsel at every stage of the proceedings and shall be informed by the court of their right to be so represented and that if they cannot pay for the services of counsel, that counsel will be appointed. Counsel of the child shall be appointed in the initial order. If the order gives physical custody of the child to the state, the initial order shall appoint counsel for the parents or, if the parents are separated or divorced, the parents or parent or other person or persons standing in loco parentis who had physical custody of the child for the majority of the time in the period immediately preceding the petition: Provided, That such representation shall only continue after the first appearance if the parent or other persons standing in loco parentis cannot pay for the services of counsel. Counsel for other parties shall only be appointed upon request for appointment of counsel. If the requesting parties have not retained counsel and cannot pay for the services of counsel, the court shall, by order entered of record, appoint an attorney or attorneys to represent the other party or parties and so inform the parties. Under no circumstances may the same attorney represent both the child and the other party or parties, nor shall the same attorney represent both parents or custodians. However, one attorney may represent both parents or custodians where both parents or guardians consent to this representation after the attorney fully discloses to the client the possible conflict and where the attorney assures the court that she or he is able to represent each client without impairing her or his professional judgment; however, if more than one child from a family is involved in the proceeding, one attorney may represent all the children. A parent who has been judicially determined to be battered shall be entitled to his or her own attorney. The court may allow to each attorney so appointed a fee in the same amount which appointed counsel can receive in felony cases. Effective July 1, 2012, any attorney appointed pursuant to this section shall by the first day of July, one thousand nine hundred ninety-three, and three hours per year each year thereafter, receive a minimum of three eight hours of continuing legal education training on representation of children, child abuse and neglect per reporting period on child abuse and neglect procedure and practice. In addition to this requirement, after July 1, 2013, any attorney appointed to represent a child must first complete training on representation of children that is approved by the administrative office of the Supreme Court of Appeals. The Supreme Court of Appeals shall develop procedures for approval and certification of training required under this section by July 1, 2012: Provided, however, That where no attorney who has completed this training is available for such appointment, the court shall appoint a competent attorney with demonstrated knowledge of child welfare law to represent the parent or child. Any attorney appointed pursuant to this section shall perform all duties required as an attorney licensed to practice law in the State of West Virginia.

(b) In any proceeding brought pursuant to the provisions of this article, the court may grant any respondent an improvement period in accord with the provisions of this article. During such period, the court may require temporary custody with a responsible person which has been found to be a fit and proper person for the temporary custody of the child or children or the state department or other agency during the improvement period. An order granting such improvement period shall require the department to prepare and submit to the court a family case plan in accordance with the provisions of section three, article six-d of this chapter.

(c) In any proceeding pursuant to the provisions of this article, the party or parties having custodial or other parental rights or responsibilities to the child shall be afforded a meaningful opportunity to be heard, including the opportunity to testify and to present and cross-examine witnesses. The petition shall not be taken as confessed. A transcript or recording shall be made of all proceedings unless waived by all parties to the proceeding. The rules of evidence shall apply. Where relevant, the court shall consider the efforts of the state department to remedy the alleged circumstances. At the conclusion of the hearing, the court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected and, if applicable, whether the parent, guardian, or custodian is a battered parent, all of which shall be incorporated into the order of the court. The findings must be based upon conditions existing at the time of the filing of the petition and proven by clear and convincing proof.

(d) Any petition filed and any proceeding held under the provisions of this article shall, to the extent practicable, be given priority over any other civil action before the court, except proceedings under article two-a, chapter forty-eight of this code and actions in which trial is in progress. Any petition filed under the provisions of this article shall be docketed immediately upon filing. Any hearing to be held at the end of an improvement period and any other hearing to be held during any proceedings under the provisions of this article shall be held as nearly as practicable on successive days and, with respect to said hearing to be held at the end of an improvement period, shall be held as close in time as possible after the end of said improvement period and shall be held within sixty days of the termination of such improvement period. (e) Following the court's determination, it shall be inquired of the parents or custodians whether or not appeal is desired and the response transcribed. A negative response shall not be construed as a waiver. The evidence shall be transcribed and made available to the parties or their counsel as soon as practicable, if the same is required for purposes of further proceedings. If an indigent person intends to pursue further proceedings, the court reporter shall furnish a transcript of the hearing without cost to the indigent person if an affidavit is filed stating that he or she cannot pay therefor.

§49-6-3. Petition to court when child believed neglected or abused -- Temporary custody.

(a) Upon the filing of a petition, the court may order that the child alleged to be an abused or neglected child be delivered for not more than ten days into the custody of the state department or a responsible person found by the court to be a fit and proper person for the temporary care of the child pending a preliminary hearing, if it finds that:

(1) There exists imminent danger to the physical well being of the child; and

(2) There are no reasonably available alternatives to removal of the child, including, but not limited to, the provision of medical, psychiatric, psychological or homemaking services in the child's present custody: Provided, That where the alleged abusing person, if known, is a member of a household, the court shall not allow placement pursuant to this section of the child or children in said home unless the alleged abusing person is or has been precluded from visiting or residing in said home by judicial order. In a case where there is more than one child in the home, or in the temporary care, custody or control of the alleged offending parent, the petition shall so state, and notwithstanding the fact that the allegations of abuse or neglect may pertain to less than all of such children, each child in the home for whom relief is sought shall be made a party to the proceeding. Even though the acts of abuse or neglect alleged in the petition were not directed against a specific child who is named in the petition, the court shall order the removal of such child, pending final disposition, if it finds that there exists imminent danger to the physical well being of the child and a lack of reasonable available alternatives to removal. The initial order directing such custody shall contain an order appointing counsel and scheduling the preliminary hearing, and upon its service shall require the immediate transfer of custody of such child or children to the department or a responsible relative which may include any parent, guardian, or other custodian. The court order shall state:

(A) That continuation in the home is contrary to the best interests of the child and why; and

(B) Whether or not the department made reasonable efforts to preserve the family and prevent the placement or that the emergency situation made such efforts unreasonable or impossible. The order may also direct any party or the department to initiate or become involved in services to facilitate reunification of the family. (b) Whether or not the court orders immediate transfer of custody as provided in subsection (a) of this section, if the facts alleged in the petition demonstrate to the court that there exists imminent danger to the child, the court may schedule a preliminary hearing giving the respondents at least five days' actual notice. If the court finds at the preliminary hearing that there are no alternatives less drastic than removal of the child and that a hearing on the petition cannot be scheduled in the interim period, the court may order that the child be delivered into the temporary custody of the department or a responsible person or agency found by the court to be a fit and proper person for the temporary care of the child for a period not exceeding sixty days: Provided, That the court order shall state:

(1) That continuation in the home is contrary to the best interests of the child and set forth the reasons therefor;

(2) whether or not the department made reasonable efforts to preserve the family and to prevent the child's removal from his or her home;

(3) Whether or not the department made reasonable efforts to preserve the family and to prevent the placement or that the emergency situation made such efforts unreasonable or impossible; and

(4) What efforts should be made by the department, if any, to facilitate the child's return home: Provided, however, That if the court grants an improvement period as provided in section twelve of this article, the sixty-day limit upon temporary custody is waived. (c) If a child or children shall, in the presence of a child protective service worker, be in an emergency situation which constitutes an imminent danger to the physical well being of the child or children, as that phrase is defined in section three, article one of this chapter, and if such worker has probable cause to believe that the child or children will suffer additional child abuse or neglect or will be removed from the county before a petition can be filed and temporary custody can be ordered, the worker may, prior to the filing of a petition, take the child or children into his or her custody without a court order: Provided, That after taking custody of such child or children prior to the filing of a petition, the worker shall forthwith appear before a circuit judge or a juvenile referee of the county wherein custody was taken, or if no such judge or referee be available, before a circuit judge or a juvenile referee of an adjoining county, and shall immediately apply for an order ratifying the emergency custody of the child pending the filing of a petition. The circuit court of every county in the state shall appoint at least one of the magistrates of the county to act as a juvenile referee, who shall serve at the will and pleasure of the appointing court, and who shall perform the functions prescribed for such position by the provisions of this subsection. The parents, guardians or custodians of the child or children may be present at the time and place of application for an order ratifying custody, and if at the time the child or children are taken into custody by the worker, the worker knows which judge or referee is to receive the application, the worker shall so inform the parents, guardians or custodians. The application for emergency custody may be on forms prescribed by the Supreme Court of Appeals or prepared by the prosecuting attorney or the applicant, and shall set forth facts from which it may be determined that the probable cause described above in this subsection exists. Upon such sworn testimony or other evidence as the judge or referee deems sufficient, the judge or referee may order the emergency taking by the worker to be ratified. If appropriate under the circumstances, the order may include authorization for an examination as provided for in subsection (b), section four of this article. If a referee issues such an order, the referee shall by telephonic communication have such order orally confirmed by a circuit judge of the circuit or an adjoining circuit who shall on the next judicial day enter an order of confirmation. If the emergency taking is ratified by the judge or referee, emergency custody of the child or children shall be vested in the department until the expiration of the next two judicial days, at which time any such child taken into emergency custody shall be returned to the custody of his or her parent or guardian or custodian unless a petition has been filed and custody of the child has been transferred under the provisions of section three of this article.

(d) For purposes of the court's consideration of temporary custody pursuant to the provisions of subsection (a) or (b) of this section, the department is not required to make reasonable efforts to preserve the family if the court determines:

(1) The parent has subjected the child, another child of the parent or any other child residing in the same household or under the temporary or permanent custody of the parent to aggravated circumstances which include, but are not limited to, abandonment, torture, chronic abuse and sexual abuse;

(2) The parent has:

(A) Committed murder of the child's other parent, guardian or custodian, another child of the parent or any other child residing in the same household or under the temporary or permanent custody of the parent;

(B) Committed voluntary manslaughter of the child's other parent, guardian or custodian, another child of the parent or any other child residing in the same household or under the temporary or permanent custody of the parent;

(C) Attempted or conspired to commit such a murder or voluntary manslaughter or been an accessory before or after the fact to either such crime;

(D) Committed unlawful or malicious wounding that results in serious bodily injury to the child, the child's other parent, guardian or custodian, to another child of the parent or any other child residing in the same household or under the temporary or permanent custody of the parent; or

(E) Committed sexual assault or sexual abuse of the child, the child's other parent, guardian or custodian, another child of the parent or any other child residing in the same household or under the temporary or permanent custody of the parent; or

(F) Has been required by state or federal law to register with a sex offender registry; or

(3) The parental rights of the parent to another child have been terminated involuntarily.

§49-6-5. Disposition of neglected or abused children.

(a) Following a determination pursuant to section two of this article wherein the court finds a child to be abused or neglected, the department shall file with the court a copy of the child's case plan, including the permanency plan for the child. The term case plan means a written document that includes, where applicable, the requirements of the family case plan as provided for in section three, article six-d of this chapter and that also includes at least the following: A description of the type of home or institution in which the child is to be placed, including a discussion of the appropriateness of the placement and how the agency which is responsible for the child plans to assure that the child receives proper care and that services are provided to the parents, child and foster parents in order to improve the conditions in the parent(s) home; facilitate return of the child to his or her own home or the permanent placement of the child; and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child. The term “permanency plan” refers to that part of the case plan which is designed to achieve a permanent home for the child in the least restrictive setting available. The plan must document efforts to ensure that the child is returned home within approximate time lines for reunification as set out in the plan. Reasonable efforts to place a child for adoption or with a legal guardian may be made at the same time reasonable efforts are made to prevent removal or to make it possible for a child to safely return home. If reunification is not the permanency plan for the child, the plan must state why reunification is not appropriate and detail the alternative placement for the child to include approximate time lines for when such placement is expected to become a permanent placement. This case plan shall serve as the family case plan for parents of abused or neglected children. Copies of the child's case plan shall be sent to the child's attorney and parent, guardian or custodian or their counsel at least five days prior to the dispositional hearing. The court shall forthwith proceed to disposition giving both the petitioner and respondents an opportunity to be heard. The court shall give precedence to dispositions in the following sequence:

(1) Dismiss the petition;

(2) Refer the child, the abusing parent, the battered parent or other family members to a community agency for needed assistance and dismiss the petition;

(3) Return the child to his or her own home under supervision of the department;

(4) Order terms of supervision calculated to assist the child and any abusing parent or battered parent or parents or custodian which prescribe the manner of supervision and care of the child and which are within the ability of any parent or parents or custodian to perform;

(5) Upon a finding that the abusing parent or battered parent or parents are presently unwilling or unable to provide adequately for the child's needs, commit the child temporarily to the custody of the state department, a licensed private child welfare agency or a suitable person who may be appointed guardian by the court. The court order shall state:

(A) That continuation in the home is contrary to the best interests of the child and why;

(B) Whether or not the department has made reasonable efforts, with the child's health and safety being the paramount concern, to preserve the family, or some portion thereof, and to prevent or eliminate the need for removing the child from the child's home and to make it possible for the child to safely return home;

(D) The specific circumstances of the situation which made such efforts unreasonable if services were not offered by the department. The court order shall also determine under what circumstances the child's commitment to the department shall continue. Considerations pertinent to the determination include whether the child should:

(i) Be continued in foster care for a specified period;

(ii) Be considered for adoption;

(iii) Be considered for legal guardianship;

(iv) Be considered for permanent placement with a fit and willing relative; or

(v) Be placed in another planned permanent living arrangement, but only in cases where the department has documented to the circuit court a compelling reason for determining that it would not be in the best interests of the child to follow one of the options set forth in subparagraphs (I), (ii), (iii) or (iv) of this paragraph. The court may order services to meet the special needs of the child. Whenever the court transfers custody of a youth to the department, an appropriate order of financial support by the parents or guardians shall be entered in accordance with section five, article seven of this chapter; or

(6) Upon a finding that there is no reasonable likelihood that the conditions of neglect or abuse can be substantially corrected in the near future and, when necessary for the welfare of the child, terminate the parental, custodial and guardianship rights and responsibilities of the abusing parent and commit the child to the permanent sole custody of the nonabusing parent, if there be one, or, if not, to either the permanent guardianship of the department or a licensed child welfare agency. The court may award sole custody of the child to a nonabusing battered parent. If the court shall so find, then in fixing its dispositional order the court shall consider the following factors:

(A) The child's need for continuity of care and caretakers;

(B) The amount of time required for the child to be integrated into a stable and permanent home environment; and

(C) Other factors as the court considers necessary and proper. Notwithstanding any other provision of this article, the court shall give consideration to the wishes of a child fourteen years of age or older or otherwise of an age of discretion as determined by the court regarding the permanent termination of parental rights. No adoption of a child shall take place until all proceedings for termination of parental rights under this article and appeals thereof are final. In determining whether or not parental rights should be terminated, the court shall consider the efforts made by the department to provide remedial and reunification services to the parent. The court order shall state:

(i) That continuation in the home is not in the best interest of the child and why;

(ii) Why reunification is not in the best interests of the child;

(iii) Whether or not the department made reasonable efforts, with the child's health and safety being the paramount concern, to preserve the family, or some portion thereof, and to prevent the placement or to eliminate the need for removing the child from the child's home and to make it possible for the child to safely return home, or that the emergency situation made such efforts unreasonable or impossible; and

(iv) Whether or not the department made reasonable efforts to preserve and reunify the family, or some portion thereof, including a description of what efforts were made or that such efforts were unreasonable due to specific circumstances.

(7) For purposes of the court's consideration of the disposition custody of a child pursuant to the provisions of this subsection, the department is not required to make reasonable efforts to preserve the family if the court determines:

(A) The parent has subjected the child, another child of the parent or any other child residing in the same household or under the temporary or permanent custody of the parent to aggravated circumstances which include, but are not limited to, abandonment, torture, chronic abuse and sexual abuse;

(B) The parent has:

(i) Committed murder of the child's other parent, guardian or custodian, another child of the parent or any other child residing in the same household or under the temporary or permanent custody of the parent;

(ii) Committed voluntary manslaughter of the child's other parent, guardian or custodian, another child of the parent or any other child residing in the same household or under the temporary or permanent custody of the parent;

(iii) Attempted or conspired to commit such a murder or voluntary manslaughter or been an accessory before or after the fact to either such crime;
(iv) Committed a felonious assault that results in serious bodily injury to the child, the child's other parent, guardian or custodian, to another child of the parent or any other child residing in the same household or under the temporary or permanent custody of the parent; or

(v) Committed sexual assault or sexual abuse of the child, the child's other parent, guardian or custodian, another child of the parent or any other child residing in the same household or under the temporary or permanent custody of the parent; or

(F) Has been required by state or federal law to register with a sex offender registry; or

(D) A parent has been required by state or federal law to register with a sex offender registry, and the court has determined in consideration of the nature and circumstances surrounding the prior charges against that parent, that the child’s interests would not be promoted by a preservation of the family.

(b) As used in this section, “no reasonable likelihood that conditions of neglect or abuse can be substantially corrected” shall mean that, based upon the evidence before the court, the abusing adult or adults have demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or with help. Such conditions shall be considered to exist in the following circumstances, which shall not be exclusive:

(1) The abusing parent or parents have habitually abused or are addicted to alcohol, controlled substances or drugs, to the extent that proper parenting skills have been seriously impaired and such person or persons have not responded to or followed through the recommended and appropriate treatment which could have improved the capacity for adequate parental functioning;

(2) The abusing parent or parents have willfully refused or are presently unwilling to cooperate in the development of a reasonable family case plan designed to lead to the child's return to their care, custody and control;

(3) The abusing parent or parents have not responded to or followed through with a reasonable family case plan or other rehabilitative efforts of social, medical, mental health or other rehabilitative agencies designed to reduce or prevent the abuse or neglect of the child, as evidenced by the continuation or insubstantial diminution of conditions which threatened the health, welfare or life of the child;

(4) The abusing parent or parents have abandoned the child;

(5) The abusing parent or parents have repeatedly or seriously injured the child physically or emotionally, or have sexually abused or sexually exploited the child, and the degree of family stress and the potential for further abuse and neglect are so great as to preclude the use of resources to mitigate or resolve family problems or assist the abusing parent or parents in fulfilling their responsibilities to the child;

(6) The abusing parent or parents have incurred emotional illness, mental illness or mental deficiency of such duration or nature as to render such parent or parents incapable of exercising proper parenting skills or sufficiently improving the adequacy of such skills; or

(7) The battered parent's parenting skills have been seriously impaired and said person has willfully refused or is presently unwilling or unable to cooperate in the development of a reasonable treatment plan or has not adequately responded to or followed through with the recommended and appropriate treatment plan.

(c) The court may, as an alternative disposition, allow the parents or custodians an improvement period not to exceed six months. During this period the court shall require the parent to rectify the conditions upon which the determination was based. The court may order the child to be placed with the parents, or any person found to be a fit and proper person, for the temporary care of the child during the period. At the end of the period, the court shall hold a hearing to determine whether the conditions have been adequately improved and at the conclusion of the hearing shall make a further dispositional order in accordance with this section.

§49-6-6. Modification of dispositional orders.

(a) Upon motion of a child, a child's parent or custodian or the state department alleging a change of circumstances requiring a different disposition, the court shall conduct a hearing pursuant to section two of this article and may modify a dispositional order if the court finds by clear and convincing evidence a material change of circumstances and that such modification is in the child’s best interests: Provided, That a dispositional order pursuant to subdivision (6), subsection (a) of section five shall not be modified after the child has been adopted, except as provided in subsections (b) and (c) of this section. Adequate and timely notice of any motion for modification shall be given to the child's counsel, counsel for the child's parent or custodian, and to the state department and any person entitled to notice and the right to be heard. The circuit court of origin has exclusive jurisdiction over placement of the child, and such placement shall not be disrupted or delayed by any administrative process of the department.

(b) If the child is removed or relinquished from an adoptive home or other permanent placement after the case has been dismissed, any party with notice thereof and the receiving agency shall promptly report the matter to the circuit court of origin, the department and the child's counsel, and the court shall schedule a permanency hearing within sixty days of the report to the circuit court, with notice given to any appropriate parties and persons entitled to notice and the right to be heard. The department shall convene a multidisciplinary treatment team meeting within thirty days of the receipt of notice of permanent placement disruption.

(c) If a child has not been adopted, the child or department may move the court to place the child with a parent or custodian whose rights have been terminated and/or restore such parent’s or guardian’s rights. Under these circumstances, the court may order such placement and/or restoration of a parent’s or guardian’s rights if it finds by clear and convincing evidence a material change of circumstances and that such placement and/or restoration is in the child’s best interests.

§49-6-8. Permanency hearing and permanent placement review.

(a) If the court finds, pursuant to any provision of this article, that the department is not required to make reasonable efforts to preserve the family, then, notwithstanding any other provision, a permanency hearing must be held within thirty days following the entry of the court order so finding, and a permanent placement review hearing must be conducted at least once every three calendar months thereafter until a permanent placement is achieved.

(a) (b) If, twelve months after receipt by the department or its authorized agent of physical custody of a child either by a court ordered placement or by a voluntary agreement, the department has not placed a child in an adoptive home or placed the child with a natural parent or placed the child in legal guardianship or permanently placed the child with a fit and willing relative, the department shall file with the court a petition for review of the case court shall hold a permanency hearing. The department shall also file with the court a report with the court detailing the efforts that have been made to place the child in a permanent home and copies of the child's case plan, including the permanency plan as defined in section five, article six of this chapter. Copies of the report shall be sent to the child's attorney and be made available to the child's parent(s) or guardian parties and all persons entitled to notice and the right to be heard. The court shall schedule a hearing in chambers, giving notice and the right to be present to: The child's attorney; the child, if twelve years of age or older; the child's parents; the child's guardians; the child's foster parents; any preadoptive parent or any relative providing care for the child; any person entitled to notice and the right to be heard; and such other persons as the court may, in its discretion, direct. The child's presence may be waived by the child's attorney at the request of the child or if the child would suffer emotional harm. The purpose of the hearing is to review the child's case, to determine whether and under what conditions the child's commitment to the department shall continue and to determine what efforts are necessary to provide the child with a permanent home. In the case of a child who will not be returned to his or her parent, the court shall consider in-state and out-of-state placement options, and, if the court considers an out-of-state placement, the court shall determine whether such placement is in the best interests of the child; in the case of a child who has attained sixteen years of age, the court shall determine the services needed to assist the child to make the transition from foster care to independent living. In any case in which the court decides to order the child placed in an out-of-state facility or program it shall set forth in the order directing the placement the reasons why the child was not placed in an in-state facility or program. At the conclusion of the hearing the court shall, in accordance with the best interests of the child, enter an appropriate order of disposition containing all such appropriate findings. The court order shall state: (1) Whether or not the department made reasonable efforts to preserve the family and to prevent out-of-home placement or that the specific situation made such effort unreasonable; (2) whether or not the department made reasonable efforts to finalize the permanency plan for the child; and (3) identify services required to meet the child's needs. Provided, That the department is not required to make reasonable efforts to preserve the family if the court determines any of the conditions set forth in subdivision (7), subsection (a), section five of this article exist. The court shall possess continuing jurisdiction over cases reviewed under this section for so long as a child remains in temporary foster care or, when a child is returned to his or her natural parents subject to conditions imposed by the court, for so long as the conditions are effective.

(b) (c) The state department court shall file a supplementary petition for review with the court shall conduct another permanency hearing within twelve months and every twelve months thereafter for every each child that who remains in the physical or legal custody of the department until the child is placed in an adoptive home or returned to his or her parents or placed in legal guardianship or permanently placed with a fit and willing relative.

(c) (d) The state department shall annually report to the court the current status of the placements of children in permanent care and custody of the state department who have not been adopted.

(d) (e) The state department shall file a report with the court in any case where any child in the temporary or permanent custody of the state receives more than three placements in one year no later than thirty days after the third placement. This report shall be provided to all parties and their counsel. and persons entitled to notice and the right to be heard. Upon motion by any party, the court shall review these placements and determine what efforts are necessary to provide the child with a stable foster or temporary permanent home: Provided, That no report shall be provided to any parent or parent's attorney whose parental rights have been terminated pursuant to this article.

(e) (f) The state department shall notify, in writing, the court, the child, if over the age of twelve, the child's attorney, the parents and the parents' attorney forty-eight hours prior to the move if this is a planned move, or within forty-eight hours of the next business day after the move if this is an emergency move, except where such notification would endanger the child or the foster family. This notice shall not be required in any case where the child is in imminent danger in the child's current placement. The location of the child need not be disclosed, but the purpose of the move should be. This requirement is not waived by placement of the child in a home or other residence maintained by a private provider. No notice shall be provided pursuant to this provision to any parent or parent's attorney whose parental rights have been terminated pursuant to this article.

(f) (g) Nothing in this article precludes any party from petitioning the court for review of the child's case at any time. The court shall grant such petition upon a showing that there is a change in circumstance or needs of the child that warrants court review.

(h) Any foster parent, preadoptive parent or relative providing care for the child shall be given notice of and the right to be heard at the permanency hearing provided in this section.

§49-6-12. Improvement period in cases of child neglect or abuse.

(a) A court may grant a respondent an improvement period of a period not to exceed three months prior to making a finding that a child is abused or neglected pursuant to section two of this article only when:

(1) The respondent files a written motion requesting the improvement period;

(2) The respondent demonstrates, by clear and convincing evidence, that the respondent is likely to fully participate in the improvement period and the court further makes a finding, on the record, of the terms of the improvement period;

(3) In the order granting the improvement period, the court (A) orders that a hearing be held to review the matter within sixty days of the granting of the improvement period; or (B) orders that a hearing be held to review the matter within ninety days of the granting of the improvement period and that the department submit a report as to the respondents progress in the improvement period within sixty days of the order granting the improvement period; and

(4) The order granting the improvement period requires the department to prepare and submit to the court an individualized family case plan in accordance with the provisions of section three, article six-d of this chapter;

(b) After finding that a child is an abused or neglected child pursuant to section two of this article, a court may grant a respondent an improvement period of a period not to exceed six months when:

(1) The respondent files a written motion requesting the improvement period;

(3) In the order granting the improvement period, the court (A) orders that a hearing be held to review the matter within sixty days of the granting of the improvement period; or (B) orders that a hearing be held to review the matter within ninety days of the granting of the improvement period and that the department submit a report as to the respondent's progress in the improvement period within sixty days of the order granting the improvement period;

(4) Since the initiation of the proceeding, the respondent has not previously been granted any improvement period or the respondent demonstrates that since the initial improvement period, the respondent has experienced a substantial change in circumstances. Further, the respondent shall demonstrate that due to that change in circumstances the respondent is likely to fully participate in a further improvement period; and

(5) The order granting the improvement period requires the department to prepare and submit to the court an individualized family case plan in accordance with the provisions of section three, article six-d of this chapter.

(c) The court may grant an improvement period not to exceed six months as a disposition pursuant to section five of this article when:

(1) The respondent moves in writing for the improvement period;

(3) In the order granting the improvement period, the court:

(A) Orders that a hearing be held to review the matter within sixty days of the granting of the improvement period; or

(B) Orders that a hearing be held to review the matter within ninety days of the granting of the improvement period and that the department submit a report as to the respondent's progress in the improvement period within sixty days of the order granting the improvement period;

(4) Since the initiation of the proceeding, the respondent has not previously been granted any improvement period or the respondent demonstrates that since the initial improvement period, the respondent has experienced a substantial change in circumstances. Further, the respondent shall demonstrate that due to that change in circumstances, the respondent is likely to fully participate in the improvement period; and

(5) The order granting the improvement period shall require the department to prepare and submit to the court an individualized family case plan in accordance with the provisions of section three, article six-d of this chapter.

(d) When any improvement period is granted to a respondent pursuant to the provisions of this section, the respondent shall be responsible for the initiation and completion of all terms of the improvement period. The court may order the state department to pay expenses associated with the services provided during the improvement period when the respondent has demonstrated that he or she is unable to bear such expenses.

(e) When any improvement period is granted to a respondent pursuant to the provisions of this section, the respondent shall execute a release of all medical information regarding that respondent, including, but not limited to, information provided by mental health and substance abuse professionals and facilities. Such release shall be accepted by any such professional or facility regardless of whether the release conforms to any standard required by that facility.

(f) When any respondent is granted an improvement period pursuant to the provisions of this article, the department shall monitor the progress of such person in the improvement period. When the respondent fails to participate in any service mandated by the improvement period, the state department shall initiate action to inform the court of that failure. When the department demonstrates that the respondent has failed to participate in any provision of the improvement period, the court shall forthwith terminate the improvement period.

(g) A court may extend any improvement period granted pursuant to subsections (b) or (c) of this section for a period not to exceed three months when the court finds that the respondent has substantially complied with the terms of the improvement period; that the continuation of the improvement period will not substantially impair the ability of the department to permanently place the child; and that such extension is otherwise consistent with the best interest of the child.

(h) Upon the motion by any party, the court shall terminate any improvement period granted pursuant to this section when the court finds that respondent has failed to fully participate in the terms of the improvement period.

(i) This section may not be construed to prohibit a court from ordering a respondent to participate in services designed to reunify a family or to relieve the department of any duty to make reasonable efforts to reunify a family required by state or federal law.

(j) Any hearing scheduled pursuant to the provisions of this section may be continued only for good cause upon a written motion properly served on all parties. When a court grants such continuance, the court shall enter an order granting the continuance which shall specify a future date when the hearing will be held.

(k) Any hearing to be held at the end of an improvement period shall be held as nearly as practicable on successive days and shall be held as close in time as possible after the end of said improvement period and shall be held no later than sixty days of the termination of such improvement period.

(l) Notwithstanding any other provision of this section, no combination of any improvement periods or extensions thereto may cause a child to be in foster care more than fifteen months of the most recent twenty-two months, unless the court finds compelling circumstances by clear and convincing evidence that it is in the child’s best interests to extend the time limits contained in this paragraph.

ARTICLE 6A. REPORTS OF CHILDREN SUSPECTED OF BEING ABUSED OR NEGLECTED.

§49-6A-5. Reporting procedures.

(a) Reports of child abuse and neglect pursuant to this article shall be made immediately by telephone to the local state department child protective service agency and shall be followed by a written report within forty-eight hours if so requested by the receiving agency. The state department shall establish and maintain a twenty-four hour, seven-day-a-week telephone number to receive such calls reporting suspected or known child abuse or neglect.

(b) A copy of any report of serious physical abuse, sexual abuse or assault shall be forwarded by the department to the appropriate law-enforcement agency, the prosecuting attorney or the coroner or medical examiner's office. All reports under this article shall be confidential. and unless there are pending proceedings with regard thereto shall be destroyed thirty years following their preparation. Reports of known or suspected institutional child abuse or neglect shall be made and received as all other reports made pursuant to this article.

§49-6D-3. Unified child and family case plans.

(a) The Department of Health and Human Resources shall develop a unified child and family case plan for every family wherein a person has been referred to the department after being allowed an improvement period under the provisions of section twelve, article six of this chapter or where the child is placed in foster care The case plan must be filed within sixty days of the child coming into foster care or within thirty days of the inception of the improvement period, whichever occurs first. The department may also prepare a family case plan for any person who voluntarily seeks child abuse and neglect services from the department, or who is referred to the department by another public agency or private organization. The family case plan is to clearly set forth an organized, realistic method of identifying family problems and the logical steps to be used in resolving or lessening those problems. Every family case plan prepared by the department shall contain the following: The case plan provisions shall comply with federal law and the rules of procedure for child abuse and neglect proceedings.

(1) A listing of specific, measurable, realistic goals to be achieved;

(2) An arrangement of goals into an order of priority;

(3) A listing of the problems that will be addressed by each goal;

(4) A specific description of how the assigned caseworker or caseworkers and the abusing parent, guardian or custodian will achieve each goal;

(5) A description of the departmental and community resources to be used in implementing the proposed actions and services;

(6) A list of the services, including time-limited reunification services as defined in section three, article one of this chapter, which will be provided;

(7) Time targets for the achievement of goals or portions of goals;

(8) An assignment of tasks to the abusing or neglecting parent, guardian or custodian, to the caseworker or caseworkers and to other participants in the planning process;

(9) A designation of when and how often tasks will be performed; and

(10) The safety of the placement of the child and plans for returning the child safely home.

(b) In cases where the family has been referred to the department by a court under the provisions of this chapter, and further action before the court is pending, the family case plan described in subsection (a) of this section shall be furnished to the court within thirty days after the entry of the order referring the case to the department, and shall be available to counsel for the parent, guardian or custodian and counsel for the child or children. The department shall encourage participation in convene a multidisciplinary treatment team, which shall develop the development the family case plan by the parent, guardian or custodian. Parents, guardians or custodians shall participate fully in the development of the case plan, and the child shall also fully participate if sufficiently mature and if the child is above the age of twelve years and the child's participation is otherwise appropriate. by the child. It shall be the duty of counsel for the participants to participate in the development of the family case plan. The family case plan may be modified from time to time by the department to allow for flexibility in goal development, and in each such case the modifications shall be submitted to the court in writing. Reasonable efforts to place a child for adoption or with a legal guardian may be made at the same time as reasonable efforts are being made to prevent removal or to make it possible for a child to return safely home. The court shall examine the proposed family case plan or any modification thereof, and upon a finding by the court that the plan or modified plan can be easily communicated, explained and discussed so as to make the participants accountable and able to understand the reasons for any success or failure under the plan, the court shall inform the participants of the probable action of the court if goals are met or not met.

(c) (1) In addition to the family case plan provided for under the provisions of subsection (b) of this section, the department shall prepare, as an appendix to the family case plan, an expanded "worker's case plan". As utilized by the department under the provisions of this section, the worker's case plan shall consist of the following:

(A) All of the information contained in the family case plan described in subsection (c) of this section;

(B) A prognosis for each of the goals projected in the family case plan, assessing the capacity of the parent, guardian or custodian to achieve the goal and whether available treatment services are likely to have the desired outcome;

(D) A description of when and how the department will decide when and how well each goal has been attained;

(E) If possible, a listing of alternative methods and specific services which the caseworker or caseworkers may consider using if the original plan does not work; and

(F) A listing of criteria to be used in determining when the family case plan should be terminated.

(2) Because the nature of the information contained in the worker's case plan described in subdivision (1) of this subsection may, in some cases, be construed to be negative with respect to the probability of change, or may be viewed as a caseworker's attempt to impose personal values into the situation, or may raise barriers of hostility and resistance between the caseworker and the family members, the worker's case plan shall not be made available to the court or to persons outside of the department, but shall be used by the department for the purpose of confirming the effectiveness of the family case plan or for determining that changes in the family case plan need to be made.

(d) (c) In furtherance of the provisions of this article, the department shall, within the limits of available funds, establish programs and services for the following purposes:

(1) For the development and establishment of training programs for professional and paraprofessional personnel in the fields of medicine, law, education, social work and other relevant fields who are engaged in, or intend to work in, the field of the prevention, identification and treatment of child abuse and neglect; and training programs for children, and for persons responsible for the welfare of children, in methods of protecting children from child abuse and neglect;

(2) For the establishment and maintenance of centers, serving defined geographic areas, staffed by multidisciplinary teams and community teams of personnel trained in the prevention, identification and treatment of child abuse and neglect cases, to provide a broad range of services related to child abuse and neglect, including direct support and supervision of satellite centers and attention homes, as well as providing advice and consultation to individuals, agencies and organizations which request such services;

(3) For furnishing services of multidisciplinary teams and community teams, trained in the prevention, identification and treatment of child abuse and neglect cases, on a consulting basis to small communities where such services are not available;

(4) For other innovative programs and projects that show promise of successfully identifying, preventing or remedying the causes of child abuse and neglect, including, but not limited to, programs and services designed to improve and maintain parenting skills, programs and projects for parent self help, and for prevention and treatment of drug-related child abuse and neglect; and

(5) Assisting public agencies or nonprofit private organizations or combinations thereof in making applications for grants from, or in entering into contracts with, the Secretary of the federal Department of Health and Human Services for demonstration programs and projects designed to identify, prevent and treat child abuse and neglect.

(e) (d) Agencies, organizations and programs funded to carry out the purposes of this section shall be structured so as to comply with any applicable federal law, any regulation of the federal Department of Health and Human Services or the secretary thereof, and any final comprehensive plan of the federal advisory board on child abuse and neglect. In funding organizations, the department shall, to the extent feasible, ensure that parental organizations combating child abuse and neglect receive preferential treatment.

ARTICLE 7. GENERAL PROVISIONS.

§49-7-1. Confidentiality of records.

(a) Except as otherwise provided in this chapter or by order of the court, all records and information concerning a child or juvenile which are maintained by the Division of Juvenile Services, the Department of Health and Human Resources, a child agency or facility, court or law-enforcement agency shall be kept confidential and shall not be released or disclosed to anyone, including any federal or state agency.

(b) Notwithstanding the provisions of subsection (a) of this section or any other provision of this code to the contrary, records concerning a child or juvenile, except adoption records juvenile court records and records disclosing the identity of a person making a complaint of child abuse or neglect shall be made available:

(1) Where otherwise authorized by this chapter;

(2) To:

(A) The child;

(B) A parent whose parental rights have not been terminated; or

(3) With the written consent of the child or of someone authorized to act on the child's behalf; or

(4) Pursuant to an order of a court of record: Provided, That the court shall review such record or records for relevancy and materiality to the issues in the proceeding and safety, and may issue an order to limit the examination and use of the records or any part thereof.

(c) In addition to those persons or entities to whom information may be disclosed under subsection (b) of this section, information related to child abuse or neglect proceedings, except information relating to the identity of the person reporting or making a complaint of child abuse or neglect, shall be made available, upon request, to:

(1) Federal, state or local government entities, or any agent of such entities, including law-enforcement agencies and prosecuting attorneys, having a need for such information in order to carry out its responsibilities under law to protect children from abuse and neglect;

(2) The child fatality review team;

(3) Child abuse citizen review panels;

(4) Multidisciplinary investigative and treatment teams; or

(5) A grand jury, circuit court or family law master court, upon a finding that information in the records is necessary for the determination of an issue before the grand jury, circuit court or family law master court.

(d) In the event of a child fatality or near fatality due to child abuse and neglect, information relating to such fatality or near fatality shall be made public by the Department of Health and Human Resources and to the entities described in subsection (c)of this section, all under the circumstances described in that subsection: Provided, That information released by the Department of Health and Human Resources pursuant to this subsection shall not include the identity of a person reporting or making a complaint of child abuse or neglect. For purposes of this subsection, “near fatality” means any medical condition of the child which is certified by the attending physician to be life threatening.

(e) Except in juvenile proceedings which are transferred to criminal proceedings, law-enforcement records and files concerning a child or juvenile shall be kept separate from the records and files of adults and not included within the court files. Law-enforcement records and files concerning a child or juvenile shall only be open to inspection pursuant to the provisions of sections seventeen and eighteen, article five of this chapter.

(f) Any person who willfully violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000, or confined in the county or regional jail for not more than six months, or be both fined and confined. A person convicted of violating the provisions of this section shall also be liable for damages in the amount of $300 or actual damages, whichever is greater.

(g) Notwithstanding the provisions of this section, or any other provision of this code to the contrary, the name and identity of any juvenile adjudicated or convicted of a violent or felonious crime shall be made available to the public.

§49-7-36. Quarterly status review and yearly permanency hearings.

(a) For each child who remains in foster care as a result of a juvenile proceeding or as a result of a child abuse and neglect proceeding, the circuit court with the assistance of the multidisciplinary treatment team shall conduct quarterly status reviews in order to determine the safety of the child, the continuing necessity for and appropriateness of the placement, the extent of compliance with the case plan, and the extent of progress which has been made toward alleviating or mitigating the causes necessitating placement in foster care, and to project a likely date by which the child may be returned to and safety maintained in the home or placed for adoption or legal guardianship. Quarterly status reviews shall commence three months after the entry of the placement order. The permanency hearing provided for in subsection (c) of this section may be considered a quarterly status review.

(b) For each transitioning adult as that term is defined in §49-2B-2(x) who remains in foster care, the circuit court shall conduct status review hearings as described in subsection (a) of this section once every three months until permanency is achieved.

(c) For each child or transitioning adult who continues to remain in foster care, the circuit court shall conduct a permanency hearing no later that twelve months after the date the child or transitioning adult is considered to have entered foster care, and at least once every twelve months thereafter until permanency is achieved. For purposes of permanency planning for transitioning adults, the circuit court shall make factual findings and conclusions of law as to whether the department made reasonable efforts to finalize a permanency plan to prepare a transitioning adult for emancipation or independence or another approved permanency option such as, but not limited to, adoption or legal guardianship pursuant to the West Virginia Guardianship and Conservatorship Act.

(d) Nothing in this section shall be construed to abrogate the responsibilities of the circuit court from conducting required hearings as provided in other provisions of this code, procedural court rules, or setting required hearings at the same time.;

And,

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

Eng. Com. Sub. for Senate Bill No. 484--A Bill to repeal §49-5-21 of the Code of West Virginia, 1931, as amended; to repeal §49-6-5a of said code; to amend and reenact §49-1-3 of said code; to amend and reenact §49-2-17 of said code; to amend and reenact §49-5-13 of said code; to amend and reenact §49-5D-2, §49-5D-3 and §49-5D-3a of said code; to amend said code by adding thereto two new sections, designated §49-5D-3b and §49-5D-3c; to amend and reenact §49-6-2, §49-6-3, §49-6-5, §49-6-6, §49-6-8 and §49-6-12 of said code; to amend and reenact §49-6A-5 of said code; to amend and reenact §49-6D-3 of said code; to amend and reenact §49-7-1 of said code; and to amend said code by adding thereto a new section, designated §49-7-36, all relating generally to child welfare; defining “court appointed special advocate program”; establishing a system of assistance from funds appropriated to the Department of Health and Human Resources for facilitating the adoption or legal guardianship of children who are dependents of the department or of a child welfare agency licenced to place children for adoption; providing when a juvenile is ordered into out-of-state placement, the reasons why the juvenile was not placed in state be included in the court order; adding additional members to the multidisciplinary team; providing a process for multidisciplinary treatment planning in cases involving child abuse and neglect; providing a process for multidisciplinary treatment planning in cases involving status offense or delinquency; increasing the continuing education hours required for attorneys appointed in child abuse and neglect cases; providing that reasonable efforts to preserve the family are not required when a person is required by state or federal law to register with a sex offender registry; providing that the court may modify a dispositional order when it finds a material change of circumstances has occurred and such modification is in the child’s best interests; clarifying that the circuit court of origin has exclusive jurisdiction over placement of a child in a child abuse and neglect case; providing a process for permanency hearings and permanent placement reviews; providing that any combination of improvement periods cannot cause a child to be in foster care more than fifteen months of the most recent twenty-two months unless the court finds that it is in the child’s best interests; providing for modifications and requests for expunging of records; requiring the secretary to promulgate legislative rules; providing guidelines for unified child and family case plans; confidentiality of records; and requiring a quarterly status review hearing and yearly permanency hearings for transitioning adults.

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

Engrossed Committee Substitute for Senate Bill No. 484, as amended by the House of Delegates, was then put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 484) passed with its House of Delegates amended title.

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

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

Eng. Com. Sub. for Senate Bill No. 512, Updating statute relating to DMV Office of Administrative Hearing's procedures.

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

Eng. Com. Sub. for Senate Bill No. 555, Providing contractor exception to sales and use tax exemption for certain nonprofit youth organization.

Eng. Com. Sub. for Senate Bill No. 572, Replacing "advanced nurse practitioner" with "advanced practice registered nurse".

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

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

On page four, section one-a, lines four and five, by striking out the words “as an advanced practice nurse practitioner” and inserting in lieu thereof the words “in an advanced practice”;

On pages four through seven, by striking out all of section fifteen-a;

By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:

That §30-7-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §30-7-1a; and that §30-7-15b and §30-7-15c of said code be amended and reenacted, all to read as follows:;

And,

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

Eng. Com. Sub. for Senate Bill No. 572--A Bill to amend and reenact §30-7-1 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §30-7-1a; and to amend and reenact §30-7-15a, §30-7-15b and §30-7-15c of said code, all relating to advanced practice registered nurses; replacing the term “advanced nurse practitioner” with “advanced practice registered nurse”; providing a new definition; making technical corrections; including the Board of Osteopathic Medicine in receipt of copy of certain verifications; providing a grandfather clause; permitting the West Virginia Board of Examiners for Registered Professional Nurses to set an application fee by legislative rule; and providing the board rule-making authority.

On motion of Senator Stollings, the following amendment to the House of Delegates amendments to the bill was reported by the Clerk and adopted:

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

Eng. Com. Sub. for Senate Bill No. 572--A Bill to amend and reenact §30-7-1 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §30-7-1a; and to amend and reenact §30-7-15b and §30-7-15c of said code, all relating to advanced practice registered nurses; replacing the term “advanced nurse practitioner” with “advanced practice registered nurse”; providing a new definition; making technical corrections; including the Board of Osteopathic Medicine in receipt of copy of certain verifications; providing a grandfather clause; permitting the West Virginia Board of Examiners for Registered Professional Nurses to set an application fee by legislative rule; and providing the board rule-making authority.

On motion of Senator Unger, the Senate concurred in the House of Delegates amendments, as amended.

Engrossed Committee Substitute for Senate Bill No. 572, as amended, was then put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 572) passed with its Senate amended title.

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

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

Eng. Senate Bill No. 575, Repealing code related to prior disability under Emergency Medical Services Retirement System.

Eng. Senate Bill No. 579, Increasing special reclamation tax on clean coal mined.

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

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

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

ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.

§22-3-11. Bonds; amount and method of bonding; bonding requirements; special reclamation tax and funds; prohibited acts; period of bond liability.

(a) After a surface mining permit application has been approved pursuant to this article, but before a permit has been issued, each operator shall furnish a penal bond, on a form to be prescribed and furnished by the secretary, payable to the State of West Virginia and conditioned upon the operator faithfully performing all of the requirements of this article and of the permit. The penal amount of the bond shall be not less than $1,000 nor more than $5,000 for each acre or fraction of an acre: Provided, That the minimum amount of bond furnished for any type of reclamation bonding shall be $10,000. The bond shall cover: (1) The entire permit area; or (2) that increment of land within the permit area upon which the operator will initiate and conduct surface mining and reclamation operations within the initial term of the permit. If the operator chooses to use incremental bonding, as succeeding increments of surface mining and reclamation operations are to be initiated and conducted within the permit area, the operator shall file with the secretary an additional bond or bonds to cover the increments in accordance with this section: Provided, however, That once the operator has chosen to proceed with bonding either the entire permit area or with incremental bonding, the operator shall continue bonding in that manner for the term of the permit.

(b) The period of liability for bond coverage begins with issuance of a permit and continues for the full term of the permit plus any additional period necessary to achieve compliance with the requirements in the reclamation plan of the permit.

(c) (1) The form of the bond shall be approved by the secretary and may include, at the option of the operator, surety bonding, collateral bonding (including cash and securities), establishment of an escrow account, self bonding or a combination of these methods. If collateral bonding is used, the operator may elect to deposit cash or collateral securities or certificates as follows: Bonds of the United States or its possessions of the Federal Land Bank or of the Homeowners' Loan Corporation; full faith and credit general obligation bonds of the State of West Virginia or other states and of any county, district or municipality of the State of West Virginia or other states; or certificates of deposit in a bank in this state, which certificates shall be in favor of the department. The cash deposit or market value of the securities or certificates shall be equal to or greater than the penal sum of the bond. The secretary shall, upon receipt of any deposit of cash, securities or certificates, promptly place the same with the Treasurer of the State of West Virginia whose duty it is to receive and hold the deposit in the name of the state in trust for the purpose for which the deposit is made when the permit is issued. The operator making the deposit is entitled, from time to time, to receive from the State Treasurer, upon the written approval of the secretary, the whole or any portion of any cash, securities or certificates so deposited, upon depositing with him or her in lieu thereof cash or other securities or certificates of the classes specified in this subsection having value equal to or greater than the sum of the bond.

(2) The secretary may approve an alternative bonding system if it will: (A) Reasonably assure that sufficient funds will be available to complete the reclamation, restoration and abatement provisions for all permit areas which may be in default at any time; and (B) provide a substantial economic incentive for the permittee to comply with all reclamation provisions.

(d) The secretary may accept the bond of the applicant itself without separate surety when the applicant demonstrates to the satisfaction of the secretary the existence of a suitable agent to receive service of process and a history of financial solvency and continuous operation sufficient for authorization to self insure.

(e) It is unlawful for the owner of surface or mineral rights to interfere with the present operator in the discharge of the operator's obligations to the state for the reclamation of lands disturbed by the operator.

(f) All bond releases shall be accomplished in accordance with the provisions of section twenty-three of this article.

(g) The Special Reclamation Fund previously created is continued. The Special Reclamation Water Trust Fund is created within the State Treasury into and from which moneys shall be paid for the purpose of assuring a reliable source of capital to reclaim and restore water treatment systems on forfeited sites. The moneys accrued in both funds, any interest earned thereon and yield from investments by the State Treasurer or West Virginia Investment Management Board are reserved solely and exclusively for the purposes set forth in this section and section seventeen, article one of this chapter. The funds shall be administered by the secretary who is authorized to expend the moneys in both funds for the reclamation and rehabilitation of lands which were subjected to permitted surface mining operations and abandoned after August 3, 1977, where the amount of the bond posted and forfeited on the land is less than the actual cost of reclamation, and where the land is not eligible for abandoned mine land reclamation funds under article two of this chapter. The secretary shall develop a long-range planning process for selection and prioritization of sites to be reclaimed so as to avoid inordinate short-term obligations of the assets in both funds of such magnitude that the solvency of either is jeopardized. The secretary may use both funds for the purpose of designing, constructing and maintaining water treatment systems when they are required for a complete reclamation of the affected lands described in this subsection. The secretary may also expend an amount not to exceed ten percent of the total annual assets in both funds to implement and administer the provisions of this article and, as they apply to the Surface Mine Board, articles one and four, chapter twenty-two-b of this code.

(h) (1) Rate, deposits and review.

(A) For tax periods commencing on and after July 1, 2009, every person conducting coal surface mining shall remit a special reclamation tax of fourteen and four-tenths cents per ton of clean coal mined, the proceeds of which shall be allocated by the secretary for deposit in the Special Reclamation Fund and the Special Reclamation Water Trust Fund.

(B) For tax periods commencing on and after July 1, 2012, the rate of tax specified in paragraph (A) of this subdivision is discontinued and is replaced by the rate of tax specified in this paragraph (B). For tax periods commencing on and after July 1, 2012, every person conducting coal surface mining shall remit a special reclamation tax of twenty-seven and nine-tenths cents per ton of clean coal mined, the proceeds of which shall be allocated by the secretary for deposit in the Special Reclamation Fund and the Special Reclamation Water Trust Fund. Of that amount, fifteen cents per ton of clean coal mined shall be deposited into the Special Reclamation Water Trust Fund.

(C) The tax shall be levied upon each ton of clean coal severed or clean coal obtained from refuse pile and slurry pond recovery or clean coal from other mining methods extracting a combination of coal and waste material as part of a fuel supply.

(D) Beginning with the tax period commencing on July 1, 2009, and every two years thereafter, the special reclamation tax shall be reviewed by the Legislature to determine whether the tax should be continued: Provided, That the tax may not be reduced until the Special Reclamation Fund and Special Reclamation Water Trust Fund have sufficient moneys to meet the reclamation responsibilities of the state established in this section.

(2) In managing the Special Reclamation Program, the secretary shall: (A) Pursue cost-effective alternative water treatment strategies; and (B) conduct formal actuarial studies every two years and conduct informal reviews annually on the Special Reclamation Fund and Special Reclamation Water Trust Fund.

(3) Prior to December 31, 2008, the secretary shall:

(A) Determine the feasibility of creating an alternate program, on a voluntary basis, for financially sound operators by which those operators pay an increased tax into the Special Reclamation Fund in exchange for a maximum per-acre bond that is less than the maximum established in subsection (a) of this section;

(B) Determine the feasibility of creating an incremental bonding program by which operators can post a reclamation bond for those areas actually disturbed within a permit area, but for less than all of the proposed disturbance and obtain incremental release of portions of that bond as reclamation advances so that the released bond can be applied to approved future disturbance; and

(C) Determine the feasibility for sites requiring water reclamation by creating a separate water reclamation security account or bond for the costs so that the existing reclamation bond in place may be released to the extent it exceeds the costs of water reclamation.

(4) If the secretary determines that the alternative program, the incremental bonding program or the water reclamation account or bonding programs reasonably assure that sufficient funds will be available to complete the reclamation of a forfeited site and that the Special Reclamation Fund will remain fiscally stable, the secretary is authorized to propose legislative rules in accordance with article three, chapter twenty-nine-a of this code to implement an alternate program, a water reclamation account or bonding program or other funding mechanisms or a combination thereof.

(i) This special reclamation tax shall be collected by the State Tax Commissioner in the same manner, at the same time and upon the same tonnage as the minimum severance tax imposed by article twelve-b, chapter eleven of this code is collected: Provided, That under no circumstance shall the special reclamation tax be construed to be an increase in either the minimum severance tax imposed by said article or the severance tax imposed by article thirteen of said chapter.

(j) Every person liable for payment of the special reclamation tax shall pay the amount due without notice or demand for payment.

(k) The Tax Commissioner shall provide to the secretary a quarterly listing of all persons known to be delinquent in payment of the special reclamation tax. The secretary may take the delinquencies into account in making determinations on the issuance, renewal or revision of any permit.

(l) The Tax Commissioner shall deposit the moneys collected with the Treasurer of the State of West Virginia to the credit of the Special Reclamation Fund and Special Reclamation Water Trust Fund.

(m) At the beginning of each quarter, the secretary shall advise the State Tax Commissioner and the Governor of the assets, excluding payments, expenditures and liabilities, in both funds.

(n) To the extent that this section modifies any powers, duties, functions and responsibilities of the department that may require approval of one or more federal agencies or officials in order to avoid disruption of the federal-state relationship involved in the implementation of the federal Surface Mining Control and Reclamation Act, 30 U. S. C. §1270 by the state, the modifications will become effective upon the approval of the modifications by the appropriate federal agency or official.

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

Engrossed Senate Bill No. 579, as amended by the House of Delegates, was then put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 579) passed with its title.

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

The nays were: None.

Absent: None.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 579) takes effect July 1, 2012.

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

Eng. Senate Bill No. 646, Requiring State Board of Education study GED issues.

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

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

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

ARTICLE 2. STATE BOARD OF EDUCATION.

§18-2-6b. General Educational Development (GED) diploma; legislative findings and intent; examination costs; testing materials and procedures; report required.

(a) The Legislature makes the following findings related to the General Educational Development (GED) examination:

(1) The GED examination is an instrument for success that can keep a student from dropping out of school and can transform the future for both school age and adult individuals who attain a GED diploma. One in every seven Americans with a high school credential has received the GED, as well as one in every twenty college students. For those who have not graduated from high school, attaining a GED diploma greatly increases their employment opportunities and earning potential.

(2) While West Virginia’s average per-capita income has increased over the past ten years as the state’s economy has held steady or grown slightly, most other states have shown declines. Despite these positive changes, West Virginia still ranks as one of the five poorest states in the nation. Additionally, many counties within the state fall far below the state average; therefore, the current cost of the GED examination is difficult for many citizens to afford without help, and significant cost increases will make the GED examination cost prohibitive.

(3) In addition to the cost factor, large areas of West Virginia are without broadband Internet access or without adequate broadband Internet access speeds, which results in diminished opportunities for rural residents to participate in the rapidly unfolding digital revolution compared to their nonrural neighbors. Citizens living in these areas have few opportunities to become adept in computer technology. Therefore, most such citizens, especially adults seeking to earn a GED years after leaving the public school system, are not proficient or even comfortable using the Internet.

(4) Individuals who may benefit most from earning a GED diploma are those who lack many of the skills needed to secure employment or to function successfully in an age dependent upon technology. Because such individuals also lack the financial resources to obtain those needed skills, if the GED is unattainable they are likely to remain in a state of poverty.

(b) It is the intent of the Legislature to make the GED diploma available to the widest possible range of state residents who have not achieved a high school diploma. To that end, an examination of the following issues is required:

(1) The impact on prospective GED test takers of the proposed changes in the design and delivery of the qualifying examination made by the American Council on Education (ACE) in 2011;

(2) The impact of the increase in costs per individual tested; and

(3) The alternatives available to reduce costs and to retain the option of pen and paper testing for those who desire it.

(c) The State Board shall perform an exhaustive study of the issues surrounding administration of the GED examination in the state including, but not limited to, the following:

(1) Analysis of research, pilot testing, or both, that was done in West Virginia by the American Council on Education prior to its decision to eliminate pen and paper examinations, along with the justifications offered for eliminating this type of examination as a possible option;

(2) Determination of the current and future costs to the state to provide GED examinations free of charge to eligible individuals; and

(3) Recommendations for statutory or rule changes to achieve the following goals:

(A) Reducing or controlling escalating costs of administering the GED examinations; and

(B) Retaining paper and pen testing for those individuals who request or require it; or

(C) Eliminating or reducing significantly the difficulty for individuals who are not comfortable or proficient in taking online examinations.

(d) The State Board shall complete its work and report its findings, conclusions and recommendations, together with drafts of any legislation or rule changes necessary to effectuate the recommendations, to the Legislative Oversight Commission on Education Accountability no later than July 1, 2012.

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

Engrossed Senate Bill No. 646, as amended by the House of Delegates, was then put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 646) passed with its title.

Senator Unger moved that the bill take effect from passage.

The nays were: None.

Absent: None.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 646) takes effect from passage.

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

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

Eng. Senate Bill No. 650, Making supplementary appropriation from General Revenue to DHHR--Division of Human Services.

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

Eng. Senate Bill No. 673, Expiring funds from MAPS -- Office of the Secretary and making supplementary appropriation to MAPS -- Division of Corrections -- Correctional Units.

Eng. Senate Bill No. 676, Extending grant funding application date for Chesapeake Bay watershed compliance projects.

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

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

On page three, section seventeen-b, line forty-four, after the word “projects” by changing the period to a colon and inserting the following proviso: Provided, That the council shall direct the water development authority to provide from monies in the Lottery Revenue Debt Service Fund not needed to pay debt service in fiscal year 2013 a grant of $6 million to a Chesapeake Bay watershed compliance project which opened bids on December 28, 2011 and further provided that such Chesapeake Bay watershed compliance project shall receive no further grant funding under this section after receipt of the $6 million grant.

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

Engrossed Senate Bill No. 676, as amended by the House of Delegates, was then put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 676) passed with its title.

Senator Unger moved that the bill take effect from passage.

The nays were: None.

Absent: None.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 676) takes effect from passage.

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

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

Senate Concurrent Resolution No. 50, Requesting DOH name bridge in Monongalia County "Lt. Col. Carroll Baxter Lilly Memorial Bridge".

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

Eng. Com. Sub. for House Bill No. 3177, Permitting an owner who sells real property pursuant to a deed of trust to terminate a preexisting tenancy.

A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to

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

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

Delegates Staggers, Ferns and Snuffer.

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

Eng. House Bill No. 4251, Relating generally to amendments to the uniform commercial code.

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

House Concurrent Resolution No. 9--Requesting the Joint Committee on Government and Finance to continue studying the needs, challenges, and issues facing West Virginia military veterans, West Virginia citizens serving in the Armed Forces of the United States, the West Virginia National Guard and other military affairs of the State of West Virginia.

Referred to the Committee on Rules.

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

House Concurrent Resolution No. 53--Requesting that the Joint Committee on Government and Finance authorize a study of the relationship between increases in seismic events and hydrocarbon production and exploration in the State of West Virginia.

Referred to the Committee on Rules.

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

House Concurrent Resolution No. 54--Requesting that the Joint committee on Government and Finance authorize a study on the compliance of the Americans with Disabilities Act in state governmental buildings throughout the State of West Virginia.

Referred to the Committee on Rules.

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

House Concurrent Resolution No. 82--Requesting the Joint Committee on Government and Finance to study the policies, procedures, issues and recommendations related to assuring the safety of state employees or employees providing contractual services on behalf of the State of West Virginia who are required to make field, community or home visits to clients, consumers or members of the public.

Referred to the Committee on Rules.

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

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

Referred to the Committee on Rules.

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

House Concurrent Resolution No. 100--Requesting the Division of Highways to name bridge number 23-16-3.92 on Buffalo Creek Road at the Braeholm Straight Stretch, known as the “Braeholm Bridge”, in Logan County, the “Donald J. Bragg Memorial Bridge”.

Referred to the Committee on Transportation and Infrastructure.

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

House Concurrent Resolution No. 103--Requesting that bridge 23-73-2.31 at the intersection of Mt. Gay Road and Route 44 in Logan County, West Virginia, be named the “Tennis “TK” Killen Memorial Bridge”.

Referred to the Committee on Transportation and Infrastructure.

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

House Concurrent Resolution No. 105--Requesting the Division of Highways to name bridge number 20-53-2.52 on County Route 53, Wills Creek Road, in Kanawha County, West Virginia, the “Specialist Fourth Class Lewis Dayton Moles Memorial Bridge”.

Referred to the Committee on Transportation and Infrastructure,

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

House Concurrent Resolution No. 126--Celebrating the life and lamenting the passing of Hulett C. Smith, the Twenty-Seventh Governor of the State of West Virginia, outstanding civic and community leader, the state’s first Commissioner of Commerce, a veteran of World War II, a loving father and grandfather, and devoted public servant to the people of his State and country.

At the request of Senator Unger, and by unanimous consent, the message was taken up for immediate consideration and reference of the resolution to a committee dispensed with.

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

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

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

House Concurrent Resolution No. 131, Extending the Committee of Conference relating to consideration of

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

Resolved by the Legislature of West Virginia:

That pursuant to Rule No. 3 of the Joint Rules of the Senate and House of Delegates, the Committee of Conference is hereby extended for a period of one day for the express purpose of consideration of matters of disagreement between the two houses.

At the request of Senator Unger, and by unanimous consent, the message was taken up for immediate consideration and reference of the resolution to a committee dispensed with.

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

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

The Senate proceeded to the fourth order of business.

Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration

Eng. Com. Sub. for House Bill No. 4263, The West Virginia Buy American Act.

And has amended same.

Now on second reading, having been read a first time and rereferred to the Committee on Finance on March 8, 2012;

And reports the same back with the recommendation that it do pass, as amended.

Respectfully submitted,

Roman W. Prezioso, Jr.,

Chair.

At the request of Senator Prezioso, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4263) contained in the preceding report from the Committee on Finance was taken up for immediate consideration and read a second time.

The following amendment to the bill, from the Committee on Finance, was reported by the Clerk and adopted:

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

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §5A-3-57, to read as follows:

ARTICLE 3. PURCHASING DIVISION.

§5A-3-57. Buy American task force; study; report.

(a) Findings. -- The Legislature finds that:

(1) The production of iron, steel, manufactured goods, coal and timber provides jobs and family income to many individuals in this state and, in turn, the jobs and family incomes of millions of persons in the United States;

(2) The taxes paid to the state and its political subdivisions by employers and employees engaged in the production and sale of iron, steel, manufactured goods, coal and timber are a large source of public revenues for West Virginia;

(3) The economy and general welfare of West Virginia and its people and the economy and general welfare of the United States are inseparably linked to the preservation and development of manufacturing, harvesting and mineral extraction industries in this state, as well as all the other states of this nation;

(4) The state’s taxpayer dollars are better spent if reinvested with its individual and employer taxpayers in order to foster job retention and growth, particularly within the manufacturing, harvesting and mineral extraction sectors, and to ensure a broad and healthy tax base for future investments vital to the state’s infrastructure; and

(5) West Virginia’s procurement policies should reflect the state’s and the nation’s principles ensuring that the products of those companies and workers who abide by workplace safety and environmental laws, rules and regulations should be rewarded with a commonsense preference in government contracting.

(b) Declaration of policy. -- It is the policy of West Virginia that the state and its political subdivisions should aid and promote the economy of this state and the United States by requiring a preference for the procurement of iron, steel, manufactured goods, coal and timber produced in the United States in all contracts for the construction, reconstruction, repair, improvement or maintenance of public buildings and public works projects.

(c) The Purchasing Division and the Division of Labor shall jointly convene the task force created in subsection (d) of this section to study the use of American-made construction materials and manufactured goods in the various aspects of the construction and maintenance of public buildings and public works projects of the state and its political subdivisions which are funded in part by state grants, state loans or state appropriations.

(d) A task force is hereby created to assist the divisions with this study. The task force shall consist of:

(1) An architect, an engineer and a contractor, each designated by his or her respective licensing board;

(2) One representative of the largest organization representing West Virginia manufacturers;

(3) One representative each from the Division of Highways, the School Building Authority, the Water Development Authority, the General Services Division and the Higher Education Policy Commission; and

(4) Four labor representatives chosen by the largest labor organization in the state.

(e) The study shall include, but not be limited to:

(1) The need to maintain a list of all suppliers qualified to provide construction materials and manufactured goods produced in the United States;

(2) The percentage of domestically produced construction materials and manufactured goods to be included in a construction project to qualify it as built with American made construction materials and manufactured goods; and

(3) Possible changes to the bid process, including waiver requirements.

(e) The directors of the Purchasing Division and the Division of Labor shall report the Joint Committee on Government and Finance, by December 31, 2012, on the task force’s findings on the best methods of promoting the American production of iron, steel, manufactured goods, coal and timber and creating jobs through a buy American mandate, as well as the burdens and benefits of such mandate on the construction industry in West Virginia and the state’s public building and public works projects.

The bill (Eng. Com. Sub. for H. B. No. 4263), as amended, was then ordered to third reading.

On motion of Senator Unger, 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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--34.

The nays were: None.

Absent: None.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4263) was then read a third time and put upon its passage.

The nays were: None.

Absent: None.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4263) passed.

The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No 4263--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto, a new section, designated §5A-3-57, relating to creating a “Buy American Task Force”; setting forth legislative findings; declaring state policy; requiring the Purchasing Division and the Division of Labor to convene a task force to study the use of American made construction materials and goods; setting forth the membership of the task force; specifying areas of study; and requiring report to Legislature by December 31, 2012.

Senator Unger moved that the bill take effect from passage.

The nays were: None.

Absent: None.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4263) takes effect from passage.

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

At the request of Senator McCabe, and by unanimous consent, the Senate returned to the second order of business and the introduction of guests.

The Senate again proceeded to the fourth order of business.

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

Your Committee on Rules has had under consideration

Senate Concurrent Resolution No. 53, Requesting Joint Committee on Government and Finance study drivers' license suspensions.

Senate Concurrent Resolution No. 67, Requesting Joint Committee on Government and Finance study general revenue funding of community and technical colleges.

Senate Concurrent Resolution No. 68, Requesting Joint Committee on Government and finance study complete streets policy.

Senate Concurrent Resolution No. 69, Requesting Joint Committee on Government and Finance study independent redistricting commission.

Senate Concurrent Resolution No. 86, Requesting Joint Committee on Government and Finance study election candidate eligibility.

Senate Concurrent Resolution No. 87, Requesting Joint Committee on Government and Finance study copper theft.

Senate Concurrent Resolution No. 88, Requesting Joint Committee on Government and Finance study magistrate caseloads.

And,

Senate Concurrent Resolution No. 91, Requesting Joint Committee on Government and Finance study WV Freedom of Information Act.

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

Respectfully submitted,

Jeffrey V. Kessler,

Chairman ex officio.

At the request of Senator Unger, unanimous consent being granted, the resolutions (S. C. R. Nos. 53, 67, 68, 69, 86, 87, 88 and 91) contained in the preceding report from the Committee on Rules were taken up for immediate consideration and considered simultaneously.

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

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

The Senate proceeded to the sixth order of business.

Senators Beach, Klempa and Foster offered the following resolution:

Senate Concurrent Resolution No. 93--Requesting the Joint Committee on Government and Finance to study the scope of practice of advanced practice nurses and the need for its expansion to improve the quality of health care, increase patient access and allow patients free choice of their health care providers.

Whereas, This Legislature is committed to availability, access and affordability of patients to high quality health care services by licensed health care professionals; and

Whereas, Regulation of health care professions is designed to protect the public and enhance patient access to competent health care delivery services; and

Whereas, Health care is an evolving, dynamic system and changes in the scope of practice are inherent in health care delivery; and

Whereas, The health care model in place, despite its established history, has not been successful in providing care to all patients in West Virginia, including the uninsured; and

Whereas, Advanced practice nursing scope of practice is increasingly expanding in other states, including the border state of Maryland, thus decreasing the likelihood of keeping the best advanced practice nurses in West Virginia; and

Whereas, Expansion in the scope of practice for advanced practice nurses should recognize the evidence available on the patient outcomes, patient satisfaction and safety of care provided by advanced practice nurses in a completely autonomous fashion; and

Whereas, The Institute of Medicine, the health arm of the National Academy of Sciences is an independent, nonprofit organization working outside of government to provide unbiased, authoritative advice to decision makers and the public, has recommended that states modify scope of practice regulations to allow full autonomy for advanced practice nurses (Future of Nursing, October 2010); and

Whereas, The Federal Trade Commission has acknowledged that limitations on advance practice nursing serves to reduce patients’ health care choices without providing countervailing consumer protection; and

Whereas, The interim study would provide an opportunity for a discussion on scope of practice expansion for advanced practice nurses by and between health care regulatory boards, education and training institutions, citizens, advocates, patients, health care professionals and lawmakers; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby requests the Joint Committee on Government and Finance to study the scope of practice of advanced practice nurses and the need for its expansion to improve the quality of health care, increase patient access and to allow patients free choice of their health care providers; and, be it

Further Resolved, That the Joint Committee on Government and Finance is hereby requested to study the scope of practice limitations on advance practice nurses in West Virginia and the need for the expansion of practice for these health care professionals; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2013, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct the study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

At the request of Senator Unger, unanimous consent being granted, the resolution was taken up for immediate consideration and referred to the Committee on Rules.

Senators Beach and Klempa offered the following resolution:

Senate Concurrent Resolution No. 94--Requesting the Joint Committee on Government and Finance to study the use of private contractors who perform work for the State of West Virginia.

Whereas, The use of private contractors who perform work in the State of West Virginia is an important issue because the State of West Virginia is increasingly using private contractors on state projects that employ citizens of other countries who may be located within or outside of the United States of America; and

Whereas, The procurement of goods manufactured in the United States, and West Virginia in particular, and of services performed in the United States, and West Virginia in particular, would likely benefit West Virginia by allowing increased oversight over such goods and services and by providing employment opportunities to West Virginians; and

Whereas, West Virginia does not collect information on its use of private contractors, including the cost, quality of product, citizenship and residency of its workers, and salaries and benefits provided to its workers, that is accessible to the public; and

Whereas, It is unclear if it is in the best interest of the State of West Virginia to use certain private contractors and out-source work when looking at overall cost-effectiveness, economic impact on West Virginia workers, security issues, and quality of work; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby requests the Joint Committee on Government and Finance to study the use of private contractors who perform work for the State of West Virginia; and, be it

Further Resolved, That the Joint Committee on Government and Finance is hereby requested to study the use of private contractors who perform work for the State of West Virginia, including which agencies or entities of state government use private contractors, the identity of the private contractors, the type of work they perform, the cost and length of their contracts, how many workers they employ to perform the work, how many of the workers are citizens of the State of West Virginia and the United States of America, the quality of the work and products of such private contractors and the wages and benefits of the workers employed by the private contractors; 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.

At the request of Senator Unger, unanimous consent being granted, the resolution was taken up for immediate consideration and referred to the Committee on Rules.

Senators Tucker, Wells, Kessler (Mr. President), Williams, Plymale, Stollings and Klempa offered the following resolution:

Senate Resolution No. 58--Memorializing the life of Michael Thomas Barrett, native West Virginian and gold medalist at the 1968 Olympics.

Whereas, Michael Thomas Barrett was born in Montgomery, West Virginia, on September 5, 1943; and

Whereas, Michael Thomas Barrett was raised in Webster Springs and Richwood, West Virginia, and graduated from Richwood High School; and

Whereas, Michael Thomas Barrett attended college at West Virginia Tech, in Montgomery, West Virginia; and

Whereas, While attending West Virginia Tech, Michael Thomas Barrett excelled in the sport of basketball, leading the Golden Bears basketball team to the 1963 West Virginia Conference tournament championship and was named Most Valuable Player; and

Whereas, Michael Thomas Barrett led the Golden Bears basketball team to regular season titles in 1964 and 1965, and was later honored by having his No. 10 jersey retired; and

Whereas, After his collegiate career, Michael Thomas Barrett entered the United States Navy, and while enlisted, earned the opportunity to participate as a member of the 1968 Men’s Basketball Olympic team and helped the USA team beat Yugoslavia to earn gold medal honors in Mexico City; and

Whereas, Michael Thomas Barrett joined Jerry West as the only two West Virginians to win a gold medal in Olympic basketball; and

Whereas, In 1968, Michael Thomas Barrett was named West Virginia’s Amateur Athlete of the Year; and

Whereas, After the Olympics, Michael Thomas Barrett played professional basketball in the American Basketball Association for three seasons, averaging 13.4 points per game over his professional career; and

Whereas, Following his basketball career, Michael Thomas Barrett became a successful businessman in Nashville, Tennessee, where he worked for the Wrangler jeans company; and

Whereas, Although he lived in Tennessee, Michael Thomas Barrett never lost his love for West Virginia, often making trips back to Montgomery and Richwood; and

Whereas, Sadly, Michael Thomas Barrett passed away on Monday, August 8, 2011, at the age of 67, leaving behind his beloved wife of 44 years, Carolyn, his brother Scott, and a host of friends, all of whom will cherish his memory for many years to come; therefore, be it

Resolved by the Senate:

That the Senate hereby memorializes the life of Michael Thomas Barrett, native West Virginian and gold medalist at the 1968 Olympics; and, be it

Further Resolved, That the Senate expresses its deepest sympathy to the family of Michael Thomas Barrett; and, be it

Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the family of Michael Thomas Barrett.

At the request of Senator Tucker, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.

On motion of Senator Unger, the Senate recessed for one minute.

Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.

Senators Stollings, Kessler (Mr. President), Plymale, Williams, Prezioso, Unger, Foster, Jenkins and Klempa offered the following resolution:

Senate Resolution No. 59--Recognizing the dedicated service of West Virginia’s family physicians to the West Virginia Legislature on the twenty-third anniversary of the Doc for the Day program.

Whereas, The Doc for the Day program was started in 1989 by the West Virginia Academy of Family Physicians to provide free medical services during the regular session of the Legislature; and

Whereas, Family physicians from around the state volunteer their time to the Doc for the Day program during each day of the regular session of the Legislature and offer medical care to legislators, staff, government officials and the general public visiting the Capitol Complex; and

Whereas, The Doc for the Day program is an educational training and health service forum for medical residents and faculty from the Charleston Division of the West Virginia University School of Medicine and the Joan C. Edwards School of Medicine at Marshall University; and

Whereas, In addition to providing medical care for minor medical conditions, the Doc for the Day program has also provided medical treatment for serious life-threatening injuries and illness, including: hypertension, heart attacks, respiratory arrest, aneurysms, strokes, broken bones, head trauma, appendicitis, pneumonia, kidney stones, and major lacerations; and

Whereas, Over 42,500 patients have received quality medical care without charge from the Doc for the Day program; and

Whereas, West Virginia’s Doc for the Day program has served as a model for free medical care programs by many other state legislatures across the nation; and

Whereas, The knowledge and expertise in family medicine by physicians who volunteer for the Doc for the Day program and the willingness to share their volunteer medical service has been, and continues to be, appreciated by the Legislature; and

Whereas, The 2012 Regular Session of the Legislature marks the twenty-third anniversary of the Doc for the Day program; therefore, be it

Resolved by the Senate:

That the Senate recognizes the dedicated service of West Virginia’s family physicians to the West Virginia Legislature on the twenty-third anniversary of the Doc for the Day program; and, be it

Further Resolved, That the Senate extends its appreciation to the West Virginia Academy of Family Physicians for its outstanding free medical program to the West Virginia Legislature on the twenty-third anniversary of the Doc for the Day program; and be it

Further Resolved, That the Senate commends all of the volunteer physicians who have taken time from their schedules to participate in the Doc for the Day program by providing free medical service to the Legislature; and be it

Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate representatives of the West Virginia Academy of Family Physicians.

At the request of Senator Stollings, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.

On motion of Senator Unger, the Senate recessed for one minute.

Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.

Senators McCabe, Plymale, Kessler (Mr. President), Williams, Klempa, Stollings, Foster, Prezioso and Unger offered the following resolution:

Senate Resolution No. 60--Commemorating the 75th anniversary of the establishment of the West Virginia Real Estate Commission.

Whereas, On March 13, 1937, the West Virginia Legislature passed Senate Bill 107, which established the West Virginia Real Estate Commission and which established a regulatory scheme to license and regulate the business of buying, leasing, selling and managing real estate for others; and

Whereas, On March 5, 2002, the Legislature passed Senate Bill 453, which re-wrote the real estate license act and as part of this enactment, the Legislature declared: “As a matter of public policy, it is necessary to protect the public interest from the unauthorized, unqualified and unregulated practice of real estate brokerage through enactment of this article and to regulate the granting of such privileges and their use.”; and

Whereas, The Commission’s duties and functions include a myriad of responsibilities, including the review of applications for license, the issuance and renewal of licenses, auditing and supervision of the curriculum and delivery of education, administering examinations required to qualify for and meet the requirements for licensure, review and audit the activities of licensees, to consider, investigate and review complaints of possible license law violations, and to determine and administer appropriate disciplinary actions for license law violations by licensees as prescribed and authorized by law; and

Whereas, Over the years, the law regulating the conduct of real estate broker and salesperson licensees has been amended and expanded to assure it remained current and relevant; significant changes include mandatory pre-license education, which was added as a requirement of obtaining a license in 1981 and continuing education was required of all licensees beginning in 1990; and

Whereas, The commission employs a dedicated and competent staff who assist the Commission in carrying out its various duties and responsibilities prescribed by law; and

Whereas, For seventy-five years the West Virginia Real Estate Commission has diligently carried out its duties and responsibilities for the regulation, oversight and supervision of the real estate brokerage profession; and

Whereas, The service of the West Virginia Real Estate Commission, its members as well as its employees should not go unrecognized for their valuable service to ensure the protection of the citizens of this state in the conduct of real estate brokerage transactions; therefore, be it

Resolved by the Senate:

That the Senate hereby commemorates the 75th anniversary of the establishment of the West Virginia Real Estate Commission; and, be it

Further Resolved, That the Senate invites all members of the West Virginia Legislature and all citizens of West Virginia to join in recognizing the West Virginia Real Estate Commission and its role in protecting the interests of the citizens of this state in the conduct of real estate brokerage transactions; and, be it

Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the West Virginia Real Estate Commission.

At the request of Senator McCabe, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.

Petitions

Senator Barnes presented a petition from Michael Gasper and numerous West Virginia residents, supporting Senate Bill No. 589 (Creating Pain-Capable Unborn Child Protection Act).

Referred to the Committee on Health and Human Resources.

On motion of Senator Unger, the Senate recessed until 1 p.m. today.

Upon expiration of the recess, the Senate reconvened and, at the request of Senator Unger, and by unanimous consent, returned to the fourth order of business.

Senator Plymale, from the Committee on Education, submitted the following report, which was received:

Your Committee on Education has had under consideration

Senate Concurrent Resolution No. 95 (originating in the Committee on Education)--Requesting the Joint Committee on Government and Finance to authorize a study regarding whether the state's laws regulating harassment in schools provide the constitutionally required safeguards to student expression.

Whereas, The State of West Virginia has an interest in ensuring that all students are safe at school; and

Whereas, The laws governing student behavior in West Virginia must apply equally and fairly to all students; and

Whereas, The Supreme Court of the United States requires government to safeguard the First Amendment right of persons in schools to engage in expression; and

Whereas, Laws that regulate harassment sometimes have the effect of restricting, punishing, or discouraging student expression even when such expression does not cause a material and substantial disruption of the educational environment of the school; therefore be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to authorize a study regarding whether the state's laws regulating harassment in schools provide the constitutionally required safeguards to student expression; and be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2013, on its findings, conclusions and recommendation, together with drafts of any legislation necessary to effectuate its recommendations; and be it

And reports the same back with the recommendation that it be adopted; but with the further recommendation that it first be referred to the Committee on Rules.

Respectfully submitted,

Robert H. Plymale,

Chair.

On motion of Senator Plymale, the resolution (S. C. R. No. 95) contained in the foregoing report from the Committee on Education was referred to the Committee on Rules.

Senator Plymale, from the Committee on Education, submitted the following report, which was received:

Your Committee on Education has had under consideration

Senate Concurrent Resolution No. 96 (originating in the Committee on Education)--Recognizing the Deaf or Hard of Hearing Student’s Bill of Rights.

Whereas, Several states and state agencies in the nation have adopted a Deaf or Hard of Hearing Student’s Bill of Rights in some form; and

Whereas, Hearing loss impacts one of the most basic of human needs: the ability to communicate with other human beings; and

Whereas, Many individuals who are deaf or hard of hearing use sign systems as their communication mode, and often American Sign Language (ASL) is their primary language; and

Whereas, “Communication Mode or Language” means one or more of the following systems or methods of communication applicable to the deaf and hard of hearing: American Sign Language; English-based manual or sign systems; oral, aural, or speech-based training; or any other communication mode or language which a student or his or her parents or guardians choose to utilize; and

Whereas, Other individuals who are deaf or hard of hearing express and receive language orally and aurally, with or without visual signs or cues; and

Whereas, Typically, young children who are deaf or hard of hearing lack significant English language skills; and

Whereas, It is essential for the well-being and growth of students who are deaf or hard of hearing that educational programs recognize the unique nature of hearing loss and ensure that all students who are deaf or hard of hearing have appropriate, ongoing and fully accessible educational opportunities in all settings; and

Whereas, There are more than 450 students who are deaf or hard of hearing in the State of West Virginia in grades kindergarten through twelfth; and

Whereas, A very small percentage of these students matriculate to post-secondary education after graduating from high school; and

Whereas, Many individuals who are deaf or hard of hearing remain unemployed after completing school due to communication barriers; and

Whereas, Students who are deaf or hard of hearing require specialized instruction, services, equipment, and materials; and

Whereas, Significant barriers to education and employment exist for individuals who are deaf or hard of hearing in our current education system and must be addressed; and

Whereas, Each student’s unique communication mode must be respected, utilized, and developed to an appropriate level of proficiency; and

Whereas, A student who is deaf or hard of hearing must have an education in which teachers of the deaf and hard of hearing and the interpreter are proficient in the primary language mode of the student; and

Whereas, Each teacher of the deaf and hard of hearing must be appropriately trained in this area of exceptionality and be sensitive to the cultural and linguistic needs of students who are deaf or hard of hearing; and

Whereas, A student who is deaf or hard of hearing must receive an education in which teachers of the deaf and hard of hearing, psychologists, speech therapists, evaluators, administrators and other special education personnel understand the unique nature of hearing loss and are specifically trained to understand the student’s needs; and

Whereas, A student who is deaf or hard of hearing must be assessed using tools which accurately evaluate aptitude, achievement level or such other factors as the tool is intended to measure. Any assessment must be delivered and administered in the student’s native language, must not be discriminatory, and must provide a qualified interpreter for its duration; and

Whereas, The Individual Education Plan (IEP) Team for a student who is deaf or hard of hearing must consider opportunities for direct communication with peers who are approximately the same age and ability level and in the student’s language and communication modes; and

Whereas, The IEP Team must consider providing related services and program options that give the deaf or hard of hearing student an appropriate and equal opportunity for communication access; and

Whereas, In considering a student’s specific communication needs, and especially the importance of clear communication, the IEP team must emphasize the acquisition of the language or communication mode chosen for or by the student, including sign, speech or another mode; and

Whereas, Language acquisition must be prioritized through: Using the student’s individual communication mode or language; providing the opportunity to interact with peers who have similar cognitive and language abilities; providing the opportunity for interaction with deaf or hard of hearing adult models who use the same or similar communication mode or language as the student; providing direct language access by teachers of the deaf and hard of hearing, interpreters and other specialists who are proficient in the student’s primary communication mode or language; and providing accessible academic instruction, school services and extracurricular activities in the student’s communication mode or language; and

Whereas, A student who is deaf or hard of hearing must have access to professional personnel with whom he or she can communicate directly in his or her language and communication modes; and

Whereas, A student who is deaf or hard of hearing and his or her parents or guardians must be given the opportunity to participate fully in the educational planning, which includes having access to all relevant information; and

Whereas, A student who is deaf or hard of hearing must have programs in which he or she has direct and appropriate access to a full spectrum of educational and vocational training programs, including, but not limited to, recess, lunch and extracurricular social and athletic activities; and

Whereas, A student who is deaf or hard of hearing must be provided appropriate assistive technology, and students, teachers and other school personnel must be trained in its use; and

Whereas, A student who is deaf or hard of hearing must be educated in classrooms where sound levels meet the Acoustical Society of America (ASA) guidelines for reducing room noise and the signal-to-noise ratio through the use of materials such as acoustical tiles; and

Whereas, A student who is deaf or hard of hearing and uses hearing aids or cochlear implants must have daily monitoring of external components conducted by trained staff; and

Whereas, A student who is deaf or hard of hearing must have opportunities for interaction with deaf and hard of hearing role models and exposure to deaf culture; and

Whereas, To ensure a free and appropriate public education for a student who is deaf or hard of hearing, as required by the Individuals with Disabilities Education Act (IDEA), the IEP team must ensure that: All the educational options available to the student at the time his or her IEP is prepared are fully explained to the parents or guardians and the student in the student’s communication mode or language; and the student is not denied the opportunity for instruction or extra curricular activities in a particular communication mode or language solely because the child has some hearing, his or her parents or guardians are not fluent in his or her communication mode, or the student has previous experience with some other communication mode or language; and

Whereas, All teachers, interpreters and other school personnel who work with students who are deaf or hard of hearing must be provided opportunities to receive professional development in their specialized fields, which must include educational strategies, interpreting skills and technology; and

Whereas, Due to the unique communication needs of students who are deaf or hard of hearing, consideration must be given to the provision of services, programs or shared resources across county lines; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby recognizes the Deaf or Hard of Hearing Student’s Bill of Rights; and, be it

Further Resolved, That a copy of this resolution be sent to the West Virginia Commission for the Deaf and Hard of Hearing and all other appropriate organizations.

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

Respectfully submitted,

Robert H. Plymale,

Chair.

At the request of Senator Plymale, unanimous consent being granted, the resolution (S. C. R. No. 96) contained in the preceding report from the Committee on Education was taken up for immediate consideration.

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

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

Senator Plymale, from the Committee on Education, submitted the following report, which was received:

Your Committee on Education has had under consideration

Senate Concurrent Resolution No. 97 (originating in the Committee on Education)--Requesting the Joint Committee on Government and Finance to conduct a study regarding the impact of truancy on students, schools and society and strategies to address truancy and improve school attendance by truant students.

Whereas, Education is a fundamental constitutional right in West Virginia; and

Whereas, Research shows that the factors contributing to truancy stem from the realms of home, family and community; school; and personal psychological characteristics; and

Whereas, Absenteeism is proven to be one of the highest predictors of school failure and that the student will eventually drop out of school; and

Whereas, Each year nearly 7000 West Virginia students leave school prior to achieving a high school diploma; and

Whereas, Truancy is a risk factor for serious juvenile delinquency and adult crime; and

Whereas, Children who are truant are more likely to be involved with illegal drugs; and

Whereas, The maximum number of unexcused absences allowed by West Virginia Code is five; and

Whereas, Truancy negatively affects the entire learning process; and

Whereas, The negative impact of truancy on society is extensive, and includes such outcomes as increased crime, low standards of living, low property values, lack of skilled workforce, and cyclical and generational devaluing of education attainment, to name only a few; and

Whereas, At least 75% of high school dropouts are eventually incarcerated; and

Whereas, At least 75% of all prison inmates in the state are high school dropouts; and

Whereas, More than 80% of prison inmates are functionally illiterate; and

Whereas, It is estimated that the 2008 class of high school dropouts will cost the state $1.7 billion in lost wages over their lifetimes; and

Whereas, Each class of high school dropouts costs the state $55 million in health care costs over the students’ lifetimes; and

Whereas, Being present at the workplace is an integral component of fulfilling the responsibilities of employment; and

Whereas, Employers often have strict attendance policies and both reward employees who adhere to the policies and discipline those who do not; and

Whereas, Schools should prepare students for the demands of the adult world, such as the expectation of employers that employees faithfully and reliably attend work; and

Whereas, Magistrate and Circuit Courts in West Virginia have initiated various effective anti-truancy strategies and programs in recent years; and

Whereas, Historically, interventions have begun in the middle grades, which ignores the foundation of a student’s education; and

Whereas, The most effective strategies begin at the elementary school level, involve efforts from both schools and families, include meaningful incentives for good attendance and consequences for poor attendance, and involve participation from community sources such as law enforcement, mental health workers, mentors, and social service providers; and

Whereas, The Legislature should explore effective truancy interventions; and

Whereas, Interventions to explore should include, but not be limited to, implementation of policies that promote school attendance through rewards for good attendance and consequences for poor attendance; promotion of attendance incentive programs; and modification of available consequences and penalties for parents whose children are truant; 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 regarding the impact of truancy on students, schools and society and strategies to address truancy and improve school attendance by truant students; and, be it

And reports the same back with the recommendation that it be adopted; but with the further recommendation that it first be referred to the Committee on Rules.

Respectfully submitted,

Robert H. Plymale,

Chair.

On motion of Senator Plymale, the resolution (S. C. R. No. 97) contained in the foregoing report from the Committee on Education was referred to the Committee on Rules.

Senator Plymale, from the Committee on Education, submitted the following report, which was received:

Your Committee on Education has had under consideration

Senate Concurrent Resolution No. 98 (originating in the Committee on Education)--Requesting the Joint Committee on Government and Finance to conduct a study on the results and recommendations of the Education Efficiency Audit of West Virginia’s Primary and Secondary Education System (Public Works, 2012) to determine which recommendations presented within may move the state toward receiving the highest return on the educational dollars spent while producing the best possible outcomes for its students.

Whereas, The Education Efficiency Audit of West Virginia’s Primary and Secondary Education System uses an array of techniques to identify issues, research possible solutions to determine best practices and develop recommendations designed to identify opportunities for savings and eliminate duplication of effort; and

Whereas, The same audit finds that West Virginia ranks eighth in the nation in education expenditures relative to income; and

Whereas, The U. S. Department of Commerce finds that West Virginia ranks seventh nationally in salaries, exclusive of benefit payments, relative to the State’s income levels; and

Whereas, Despite the funds expended, West Virginia students score below the national average on twenty-one of the twenty-four indicators of student performance as reported by the National Assessment of Educational Progress; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby requests the Joint Committee on Government and Finance to conduct a study on the results and recommendations of the Education Efficiency Audit of West Virginia’s Primary and Secondary Education System (Public Works, 2012) to determine which recommendations presented within may move the state toward receiving the highest return on the educational dollars spent while producing the best possible outcomes for its students; and, be it

And reports the same back with the recommendation that it be adopted; but with the further recommendation that it first be referred to the Committee on Rules.

Respectfully submitted,

Robert H. Plymale,

Chair.

On motion of Senator Plymale, the resolution (S. C. R. No. 98) contained in the foregoing report from the Committee on Education was referred to the Committee on Rules.

Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:

Your Committee on Government Organization has had under consideration

Senate Concurrent Resolution No. 99 (originating in the Committee on Government Organization)--Requesting the Joint Committee on Government and Finance study the relationship between our district conservation supervisors and the local entities with which they interact to determine if the relationship is working or if the committee recommends a codified framework for this interaction.

Whereas, The mission of the West Virginia Conservation Agency is to preserve West Virginia’s natural resources by working with partners to promote soil and water conservation; and

Whereas, West Virginia’s Soil Conservation Committee was created in 1939, its functions and programs to conserve soil and retard erosion; and

Whereas, West Virginia currently has fourteen Conservation Districts, each consisting of six counties; and

Whereas, In 2002, the Legislature changed the name of the Soil Conservation Committee to State Conservation Committee to show that the committee’s responsibilities went beyond soil to all natural resources such as air and water; and

Whereas, The State Conservation Committee serves as the governing body of the West Virginia Conservation Agency; and

Whereas, The West Virginia Conservation Agency has a West Virginia Lime Incentive Program which provides up to a fifty percent cost-share reimbursement with eligible farmers for the purchase of agricultural lime to improve their grasslands; and

Whereas, The West Virginia Conservation Agency has an Agriculture Enhancement Pilot Program, which is administered through conservation districts, with the goal of increasing farm productivity by conserving soil, making wise use of agricultural resources and improving water quality in the state’s streams and rivers; and

Whereas, The Emergency Watershed Protection is only used during a State or Federal Emergency Declaration in response to a sudden disaster, and is only used for the removal of blockages causing a seventy-five percent obstruction to stream flow and not for maintenance issues such as removing trash, raising banks, dikes or dredging; and

Whereas, The Stream Protection and Restoration Program is used to cover nonemergency situations that fall outside of the Emergency Watershed Protection Program, including blockage removal from Legislative or Citizen Contact Reports, and planned projects using Natural Stream Restoration designs; and

Whereas, The Landowner Stream Access Permit Program is a permit process designed to provide landowners the opportunity to complete certain types of stream projects with technical assistance from the West Virginia Conservation Agency; and

Whereas, The West Virginia Conservation Agency is responsible for the inspection and operation and maintenance of one hundred seventy watershed dam’s and twenty-two channels throughout West Virginia, and is also responsible for the rehabilitation of the state’s aging watershed dams; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the relationship between our district conservation supervisors and the local entities with which they interact to determine if the relationship is working or if the committee recommends a codified framework for this interaction; and, be it

And reports the same back with the recommendation that it be adopted; but with the further recommendation that it first be referred to the Committee on Rules.

Respectfully submitted,

Herb Snyder,

Chair.

On motion of Senator Snyder, the resolution (S. C. R. No. 99) contained in the foregoing report from the Committee on Government Organization was referred to the Committee on Rules.

Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration

Senate Concurrent Resolution No. 100 (originating in the Committee on Finance)--Requesting the Joint Committee on Government and Finance to study copayments for services by a licensed therapist.

Whereas, The Legislature is interested in the effects of copayments on the ability of individuals to access therapy services; and

Whereas, The Legislature is interested in the effect of copayments on costs to health care payers for therapy services; and

Whereas, The Legislature believes it is prudent to study the issue before passing any state law which could negatively affect insurance consumers and limit consumer choice; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby requests the Joint Committee on Government and Finance to study copayments for services by a licensed therapist; and, be it

And reports the same back with the recommendation that it be adopted; but with the further recommendation that it first be referred to the Committee on Rules.

Respectfully submitted,

Roman W. Prezioso, Jr.,

Chair.

On motion of Senator Prezioso, the resolution (S. C. R. No. 100) contained in the foregoing report from the Committee on Finance was referred to the Committee on Rules.

The Senate proceeded to the seventh order of business.

House Concurrent Resolution No. 59, Expressing support for improvement in the collection, processing and consumption of recyclable materials throughout the State.

On unfinished business, coming up in regular order, was reported by the Clerk.

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

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

House Concurrent Resolution No. 74, Requesting the state congressional delegation to ask the US Department of State to make certain demands on the government of the United Arab Emirates.

On unfinished business, coming up in regular order, was reported by the Clerk.

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

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

House Concurrent Resolution No. 77, Declaring that the month of September be proclaimed as Take Pride in America Month beginning with September, 2012.

On unfinished business, coming up in regular order, was reported by the Clerk.

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

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

The Senate proceeded to the eighth order of business.

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

On third reading, coming up in regular order, was reported by the Clerk.

At the request of Senator Palumbo, unanimous consent was granted to offer an amendment to the bill on third reading.

Thereupon, on motion of Senator Palumbo, the following amendment to the bill was reported by the Clerk:

On page two, section nineteen, line fourteen, after the word “system.” by inserting the following: The provisions of this subsection (a) apply only to deeds, contracts, security instruments, or other instruments affecting the transfer or sale of any interest in real property, or to any governing document of a housing development or association, recorded or executed after the effective date of this section.

Pending discussion,

Thereafter, at the request of Senator Palumbo, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar, with the right to amend on third reading remaining in effect and with Senator Palumbo's amendment to the bill pending.

Eng. Com. Sub. for House Bill No. 4006, Relating to elevator workers' licensure exemptions.

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

On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--33.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4006) passed.

The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4006--A Bill to amend and reenact §21-3C-1, §21-3C-10a and §21-3C-11 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §21-3C-10b, all relating to elevators; defining certain terms; requiring licensure; providing licensure requirements for elevator mechanics, accessibility technicians and limited technicians; providing requirements to obtain a limited use/limited application endorsement; providing requirements for issuance and renewal of licenses; modifying rule-making authority of Commissioner of Labor; and removing reciprocity provisions.

Senator Unger moved that the bill take effect from passage.

On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--33.

The nays were: None.

Absent: K. Facemyer--1.

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. 4006) takes effect from passage.

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

Eng. House Bill No. 4007, Relating to unemployment benefits for certain spouses of military personnel.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4007) passed with its title.

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

Eng. Com. Sub. for House Bill No. 4015, Creating the Herbert Henderson Office of Minority Affairs.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4015) passed.

The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4015--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5-26-1 and §5-26-2, all relating to the creation of the Herbert Henderson Office of Minority Affairs within the Governor’s office; establishing the powers and duties of the office; providing for an executive director; requiring annual reports to the Governor and the Joint Committee on Government and Finance; and creating a Minority Affairs Fund.

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

Eng. Com. Sub. for House Bill No. 4053, Relating to abduction, kidnapping and human trafficking.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4053) passed.

The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4053--A Bill to amend and reenact §30-29-3 the Code of West Virginia, 1931, as amended; and to amend said code by adding a new section, designated §61-2-17, all relating to human trafficking; authorizing the Governor's Committee on Crime, Delinquency and Correction to establish standards governing training to effectively investigate human trafficking offenses and procedures for implementation of a course in investigation of human trafficking offenses; creating the new criminal offense of human trafficking; specifying the penalties for the new human trafficking offense; and including human trafficking as a qualifying offense in the prohibition against operating a criminal enterprise.

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

Eng. Com. Sub. for House Bill No. 4070, Changing the basis for paying the county salary supplement equivalent pay rate for division of rehabilitation teachers.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4070) passed with its title.

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

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

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4077) passed.

The following amendment to the title of the bill, from the Committee on Health and Human Resources, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4077--A Bill to amend §30-4-17 of the code of West Virginia, 1931, as amended, relating to activities that may be performed by a dental hygienist without a prior exam by a dentist; requiring a Public Health Practice permit; providing for the sealants to be placed pursuant to a collaborative agreement with a supervising dentist; and requiring a referral for a dental examination within six months.

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

Eng. Com. Sub. for House Bill No. 4101, Authorizing teacher-in-residence programs for certain prospective teachers in lieu of student teaching.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4101) passed.

The following amendment to the title of the bill, from the Committee on Education, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4101--A Bill to amend and reenact §18A-3-1 and 18A-3-2a of the code of West Virginia, 1931, as amended, all relating to teacher preparation and certification; authorizing teacher-in-residence programs for certain prospective teachers in lieu of student teaching; defining teacher-in-residence programs and providing minimum requirements; providing use of certain funds for program support and student stipend; specifying formula for calculating stipend; creating teacher-in-residence permit and specifying conditions; authorizing counties with comprehensive induction programs to use consistent structure for supervision and training of student teachers; conforming sections to other provisions of law; removing duplicative and obsolete language; and making technical corrections throughout.

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

Eng. Com. Sub. for House Bill No. 4139, Authorizing miscellaneous agencies and boards to promulgate legislative rules.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4139) passed with its title.

Senator Unger moved that the bill take effect from passage.

The nays were: None.

Absent: K. Facemyer--1.

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. 4139) takes effect from passage.

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

Eng. Com. Sub. for House Bill No. 4142, Authorizing the Department of Administration to promulgate legislative rules.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4142) passed with its title.

Senator Unger moved that the bill take effect from passage.

The nays were: None.

Absent: K. Facemyer--1.

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. 4142) takes effect from passage.

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

Eng. Com. Sub. for House Bill No. 4256, Relating to captive insurance.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4256) passed with its title.

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

Eng. Com. Sub. for House Bill No. 4257, Providing late voter registration opportunities to individuals covered by the Uniformed and Overseas Citizens Act of 1986.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4257) passed.

At the request of Senator Palumbo, as chair of the Committee on the Judiciary, and by unanimous consent, the unreported Judiciary committee amendment to the title of the bill was withdrawn.

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

Eng. Com. Sub. for House Bill No. 4257--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §3-2-6a, relating to permitting voter registration in person up to, but not including, the day of the election for any member of a uniformed service of the United States, as defined in 42 U. S. C. §1973ff-6, any member of the Merchant Marine of the United States, any person who resides outside the United States by virtue of his or her employment in support of national security functions or purpose; any spouse or dependent residing with a person who meets the aforesaid criteria; providing for applicability of section; providing that any person who registers pursuant to this section shall vote a provisional ballot; and requiring the Secretary of State to prescribe procedures to implement the section.

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

Eng. House Bill No. 4274, Expanding the authority of the Commissioner of Banking over regulated consumer lender licensees, and providing a penalty for violations.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4274) passed with its title.

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

Eng. Com. Sub. for House Bill No. 4279, Permitting municipalities to stagger the terms of elected officers.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4279) passed.

The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4279--A Bill to amend and reenact §8-5-5 of the Code of West Virginia, 1931, as amended, relating to elected municipal officers; and authorizing municipalities to stagger and/or change the terms of elected municipal officers by ordinance and approval of the voters.

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

Eng. Com. Sub. for House Bill No. 4281, Increasing the supplemental pay of members of the West Virginia State Police.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4281) passed with its title.

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

The nays were: None.

Absent: K. Facemyer--1.

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. 4281) takes effect July 1, 2012.

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

Eng. House Bill No. 4315, Permitting a new class IV town or village to select a form of government.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4315) passed with its title.

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

Eng. Com. Sub. for House Bill No. 4327, Requiring pulse oximetry testing for newborns.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4327) passed.

The following amendment to the title of the bill, from the Committee on Health and Human Resources, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4327--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-44-1 and §16-44-2, all relating to requiring pulse oximetry testing for newborns; setting forth legislative findings; authorizing the Commissioner of the Bureau of Public Health to require testing; providing timing requirements for testing; and requiring the commissioner to adopt procedural and legislative rules.

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

Eng. Com. Sub. for House Bill No. 4390, Uniform Power of Attorney Act.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4390) passed.

At the request of Senator Klempa, as chair of the Committee on Interstate Cooperation, and by unanimous consent, the unreported Interstate Cooperation committee amendment to the title of the bill was withdrawn.

The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4390--A Bill to repeal §39-4-1, §39-4-2, §39-4-3, §39-4-4, §39-4-5, §39-4-6 and §39-4-7 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new chapter, designated §39B-1-101, §39B-1-102, §39B-1-103, §39B-1-104, §39B-1-105, §39B-1-106, §39B-1-107, §39B-1-108, §39B-1-109, §39B-1-110, §39B-1-111, §39B-1-112, §39B-1-113, §39B-1-114, §39B-1-115, §39B-1-116, §39B-1-117, §39B-1-118, §39B-1-119, §39B-1-120, §39B-1-121, §39B-1-122, §39B-1-123, §39B-2-101, §39B-2-102, §39B-2-103, §39B-2-104, §39B-2-105, §39B-2-106, §39B-2-107, §39B-2-108, §39B-2-109, §39B-2-110, §39B-2-111, §39B-2-112, §39B-2-113, §39B-2-114, §39B-2-115, §39B-2-116, §39B-2-117, §39B-3-101 §39B-3-102, §39B-4-101, §39B-4-102, and §39B-4-103; and to amend and reenact §44A-3-3 of said code, all relating to repealing the Uniform Durable Power of Attorney Act and adopting the Uniform Power of Attorney Act; declaring the state law of the state where the power of attorney is executed to be controlling; providing a short title; providing definitions; setting forth the applicability of the act; providing that the power of attorney is durable; requiring the power of attorney to be acknowledged before a notary public or other individual authorized by law to take acknowledgments; providing for execution, validity and meaning and effect of power of attorney; nominating conservator or guardian and relation of agent to court-appointed fiduciary; providing when power of attorney effective; terminating power of attorney or agent’s authority; providing for coagents and successor agents and their liability; reimbursing and compensating agent, exception; providing for agent’s acceptance of appointment and agent’s duties; exonerating agent in power of attorney, exceptions; providing certain persons judicial relief to construe a power of attorney or review an agent’s conduct; providing for agent’s liability in certain monetary amounts; providing for resignation of agent; accepting and relying upon acknowledged power of attorney and for what a request may be made before accepting the power of attorney; providing for liability for refusing to accept an acknowledged statutory form power of attorney; declaring that principles of law and equity supplement the act; providing that laws applicable to financial institutions and entities supercede this act; declaring remedies under the act are not exclusive; granting specific and general authority under the power of attorney; providing for granting general authority of the agent under a power of attorney which incorporates by reference a subject matter involving real property, tangible personal property, stocks and bonds, commodities and options, financial institutions, operation of an entity or business, insurance and annuities, estates, trusts and other beneficial interests, claims and litigation, personal and family maintenance, benefits from governmental programs or civil or military service, retirement plans, taxes and gifts; providing a statutory form power of attorney form; providing miscellaneous provisions relating to uniformity of application and construction and relating to electronic signatures in the Global and National Commerce Act; providing application of act on existing powers of attorney; and removing provision in the West Virginia Guardianship and Conservatorship Act that a conservator may not revoke or amend a durable power of attorney without approval of the court to avoid a conflict.

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

Eng. Com. Sub. for House Bill No. 4422, Relating to crane operator certification.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4422) passed.

The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4422-A Bill to amend and reenact §21-3D-1, §21-3D-2, §21-3D-3, §21-3D-4 and §21-3D-9 of the Code of West Virginia, 1931, as amended, all relating to crane operator certification; redefining a crane for the purposes of the act; clarifying those persons who are exempted from certification; expanding the type of equipment for which certification is required to operate; requiring adherence to standards established by the Occupational Safety and Health Administration of the United States Department of Labor; clarifying the minimum requirements for certification; authorizing the Commissioner of Labor to issue notices to cease and desist unlawful practices; authorizing the Commissioner of Labor to apply to the circuit court for injunctive relief; limiting reciprocity provisions; deleting obsolete provisions; and requiring certain crane operators to hold certain classes of certification as of November 10, 2014.

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

Eng. Com. Sub. for House Bill No. 4424, Relating to modified mental hygiene procedures.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4424) passed.

The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4424--A Bill to amend and reenact §27-5-11 of the Code of West Virginia, 1931, as amended, relating to modified mental hygiene procedures; extending the termination date of the modified mental hygiene procedures pilot project; including addiction as a basis for treatment under the pilot project; authorizing additional programs throughout the state; continuing the pilot project through July 1, 2014; and requiring the secretary of the Department of Health and Human Resources to report to the legislature regarding the efficacy of the pilot program on or before the first day of the 2013 and 2014 regular sessions of the Legislature.

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

Eng. Com. Sub. for House Bill No. 4438, Provider Sponsored Network Act.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4438) passed.

The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4438--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-2L-1, §16-2L-2, §16-2L-3, §16-2L-4, §16-2L-5, §16-2L-6 and §16-2L-7; and to amend said code by adding thereto a new article, designated §33-25G-1, §33-25G-2, §33-25G-3, §33-25G-4 and §33-25G-5, all relating to provider sponsored networks; stating the purpose; making legislative findings; defining terms; authorizing the Secretary of the Department of Health and Human Resources to contract with provider sponsored networks to provide services to Medicaid beneficiaries; assigning certain medicaid beneficiaries to provider sponsored networks; guaranteeing Medicaid beneficiaries’ freedom to choose a managed care plan; providing an exemption from anti-trust laws; requiring reports to the Legislature; providing for shared savings with the state; authorizing the Insurance Commissioner to license provider sponsored networks; subjecting provider sponsored networks generally to the laws governing HMOs; providing for participation of health care providers in a provider sponsored network; permitting lower or different minimum capital and surplus amounts; and providing rule-making authority, including emergency rules.

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

Eng. Com. Sub. for House Bill No. 4504, Relating to development and operation of a nursing home on the grounds of a nonprofit community health care organization.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4504) passed with its title.

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

Eng. House Bill No. 4521, Permitting the restructuring of child support payments of an inmate who is released under certain circumstances.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4521) passed.

The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

Eng. House Bill No. 4521--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §48-13-703, relating to permitting the restructuring of child support payments of an inmate who is released from the custody of the Division of Corrections or United States Bureau of Prisons under certain circumstances; providing that one judge within the circuit may assume jurisdiction over all child support obligations of the former inmate; and providing a minimum amount of child support which is to be paid each month in each case.

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

Eng. House Bill No. 4522, Providing additional contempt powers for family court judges.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4522) passed.

The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4522--A Bill to amend and reenact §51-2A-9 of the Code of West Virginia, 1931, as amended, relating to providing additional contempt powers for family court judges in civil contempt cases; and providing for alternatives to incarceration until the person has purged himself or herself of the contempt.

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

Eng. House Bill No. 4549, Imposing a monetary penalty on unemployment compensation recipients for obtaining benefits through the use of fraudulent statements.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4549) passed.

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

Eng. House Bill No. 4549--A Bill to amend and reenact §21A-10-7 of the Code of West Virginia, 1931, as amended, relating to imposing a monetary penalty on unemployment compensation recipients for obtaining benefits through the use of fraudulent statements or actions; specifying disposition of the penalties collected; and providing that penalty amounts may not be used to offset future benefit payments to recipients.

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

The nays were: None.

Absent: K. Facemyer--1.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4549) takes effect July 1, 2012.

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

Eng. Com. Sub. for House Bill No. 4601, Authorizing the West Virginia National Guard to participate in a federal asset forfeiture or sharing program.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4601) passed with its title.

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

Eng. House Bill No. 4626, Increasing state police principal supervisors to nineteen.

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

On the passage of the bill, the yeas were: Barnes, Beach, Boley, Edgell, Foster, Green, Jenkins, Kirkendoll, McCabe, Minard, Nohe, Palumbo, Plymale, Prezioso, Stollings, Sypolt, Unger, Wells and Kessler (Mr. President)--19.

The nays were: Browning, Chafin, D. Facemire, Fanning, Hall, Helmick, Klempa, Laird, Miller, Snyder, Tucker, Williams, Wills and Yost--14.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4626) passed with its title.

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

Eng. House Bill No. 4655, Relating to school service personnel certification.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4655) passed with its title.

Senator Unger moved that the bill take effect from passage.

The nays were: None.

Absent: K. Facemyer--1.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4655) 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 ninth order of business.

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

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

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

ARTICLE 8. PUBLIC RECORDS MANAGEMENT AND PRESERVATION ACT.

§5A-8-20. Alternate storage of state records.

(a) Findings and purpose. -- The Legislature finds that continuous advances in technology have resulted and will continue to result in the development of alternate formats for the nonerasable storage of state records, and that the use of such alternative storage formats, where deemed advisable, promote the efficient and economical administration of government and provide a means for the preservation of valuable records which that are subject to decay or destruction. It is the purpose of the Legislature to authorize the storage of state records in such those alternate formats, as may be determined by the various branches of the government of this state, that will reasonably ensure that the originals of such those records are copied into such alternative formats in a manner in which the image thereof may of the original records is not be erased or altered, and from which true and accurate reproductions of the original state records may be retrieved.

(b) Approved format. -- (1) In addition to those formats, processes and systems described in section ten of this article, sections seven-a and seven-c, article one, chapter fifty-seven of this code, and section twelve, article five of said chapter fifty-seven, which are otherwise authorized for the reproduction of state records, a preservation duplicate of a state record may be stored in any approved format where the image of the original state record is preserved in a form in which the image thereof is incapable of erasure or alteration, and from which a reproduction of the stored state record may be retrieved which truly and accurately depicts the image of the original state record.

(2) As a substitute for using medium that is incapable of erasure or alteration, a preservation duplicate of a state record may be stored on other electronic storage medium or other medium capable of storing digitized documents if:

(A) The medium is stored to maximize its life by minimizing exposure to environmental contaminants;

(B) At least two copies of the preservation duplicate are made and one copy is stored in an off-site location; and

(i) Modifications in the archiving process are made as technology changes so that the preservation duplicates are readily accessible, which may include migrating the preservation duplicates to different medium or different file formats; and

(ii) The medium is periodically examined to determine if the preservation duplicates remain readable and intact.

(c) Executive agency records. -- (1) Except for those formats, processes and systems used for the storage of state records on the effective date of this section, no The alternate format formats for the storage of state records described in this section is are authorized for the storage of the state records of any agency of this state. unless the particular format has been approved by the state records administrator pursuant to legislative rule promulgated in accordance with the provisions of chapter twenty-nine-a of this code. No provision of this section shall be construed to prohibit the state records administrator from prohibiting the use of any format, process or system used for the storage of executive state records upon his or her determination that the same is not reasonably adequate to preserve the state records from destruction, alteration or decay. The state records administrator shall establish a procedure for executive agencies to follow implementing the provisions of subsection (b) of this section by July 1, 2012. The procedure shall include, at a minimum, the identification of examples of medium and accompanying procedures to be followed for executive agencies when making preservation duplicates of state records on medium readily available, other than microfilm or microfiche.

(2) Upon creation of a preservation duplicate which stores an original executive state record in an approved format in which the image thereof is incapable of erasure or alteration, and from which a reproduction of the stored state record may be retrieved which truly and accurately depicts the image of the original state record, the state records administrator may destroy or otherwise dispose of the original in accordance with the provisions of section seventeen of this article for the destruction of records.

(d) Judicial records. -- (1) Except for those formats, processes and systems used for the storage of state records on the effective date of this section, no alternate format for the storage of state records described in this section is authorized for the storage of the state records of any court of this state unless the particular format has been approved by the Supreme Court of Appeals by rule. No provision of this This section shall be construed to does not prohibit the Supreme Court of Appeals from prohibiting the use of any format, process or system used for the storage of judicial state records upon its determination that the same is not reasonably adequate to preserve the state records from destruction, alteration or decay.

(2) Upon creation of a preservation duplicate which stores an original judicial state record in an approved format in which the image thereof is incapable of erasure or alteration, and from which a reproduction of the stored state record may be retrieved which truly and accurately depicts the image of the original state record, the court or the clerk thereof creating the same may, consistent with rules of the Supreme Court of Appeals, destroy or otherwise dispose of the original in accordance with the provisions of section seven, article one, chapter fifty-seven of this code for the destruction of records.

(e) Legislative records. -- (1) Except for those formats, processes and systems used for the storage of state records on the effective date of this section, no alternate format for the storage of state records described in this section is authorized for the Storage of the state records of the Legislature unless the particular format has been approved in a writing jointly by the Speaker of the House of Delegates and the President of the Senate to the clerks of their respective houses. No provision of this section shall be construed to prohibit the presiding officers of the houses of the Legislature from prohibiting the use of any format, process or system used for the storage of legislative state records upon their determination that the same is not reasonably adequate to preserve the state records from destruction, alteration or decay.

(2) Upon creation of a preservation duplicate which stores an original legislative state record in an approved format in which the image thereof is incapable of erasure or alteration, and from which a reproduction of the stored state record may be retrieved which truly and accurately depicts the image of the original state record, the clerks of the respective houses of the Legislature may destroy or otherwise dispose of the original. However, prior thereto, the clerks shall give written notice of their intention to do so to the director of the section of archives and history of the Division of Culture and History. Upon the written request of the director, given to the clerks within ten days of receipt of said notice, the clerks shall retain the original record for a period of thirty days. In the event the director fails to retrieve the original document from the clerks within the thirty day period, the clerks may destroy or otherwise dispose of the original without further notice to the director. In accordance with all applicable provisions of the West Virginia Constitution, the procedures for the storage and destruction of legislative records shall be determined by each house, or by a joint rule.

(f) Upon request and payment of a reasonable cost, one copy of any state record archived or preserved pursuant to the provisions of this article shall be provided to any county historical society.

The bill (Eng. Com. Sub. for H. B. No. 2278), as amended, was then ordered to third reading.

On motion of Senator Unger, 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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--33.

The nays were: None.

Absent: K. Facemyer--1.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2278) was then read a third time and put upon its passage.

On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--33.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2278) passed.

The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 2278--A Bill to amend and reenact §5A-8-20 of the Code of West Virginia, 1931, as amended, relating to the creation of preservation duplicates of state records and destruction of the original records; authorizing the use of additional medium for use in archiving the records; authorizing state records administrator to establish procedures concerning preservation duplicates stored on additional medium; providing Legislature may establish procedure for storage and destruction of records; and authorizing county historical societies to obtain a copy of an archived state record.

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

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

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4012, Removing the Commissioner of the Bureau for Public Health from certain boards.

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4028, Authorizing the temporary suspension of certification of emergency medical service personnel or licensure of emergency medical service agencies without a hearing or prior notice if there is probable cause.

On second reading, coming up in regular order, was read a second time.

At the request of Senator Palumbo, as chair of the Committee on the Judiciary, and by unanimous consent, the unreported Judiciary committee amendment to the bill was withdrawn.

The following amendment to the bill, from the Committee on the Government Organization, was reported by the Clerk and adopted:

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

ARTICLE 4C. EMERGENCY MEDICAL SERVICES ACT.

§16-4C-6. Powers and duties of commissioner.

The commissioner has the following powers and duties:

(a) To propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code: Provided, That the rules have been submitted at least thirty days in advance for review by the Emergency Medical Services Advisory Council, who may act only in the presence of a quorum. The rules may include:

(1) Standards and requirements for certification and recertification of emergency medical service personnel, including, but not limited to:

(A) Age, training, testing and continuing education;

(B) Procedures for certification and recertification, and for denying, suspending, revoking, reinstating and limiting a certification or recertification;

(D) Standards of conduct; and

(E) Causes for disciplinary action and sanctions which may be imposed.

(2) Standards and requirements for licensure and licensure renewals of emergency medical service agencies, including:

(A) Operational standards, levels of service, personnel qualifications and training, communications, public access, records management, reporting requirements, medical direction, quality assurance and review, and other requirements necessary for safe and efficient operation;

(B) Inspection standards and establishment of improvement periods to ensure maintenance of the standards;

(D) Procedures for denying, suspending, revoking, reinstating or limiting an agency licensure;

(E) Causes for disciplinary action against agencies; and

(F) Administrative penalties, fines and other disciplinary sanctions which may be imposed on agencies;

(3) Standards and requirements for emergency medical service vehicles, including classifications and specifications;

(4) Standards and requirements for training institutions, including approval or accreditation of sponsors of continuing education, course curricula and personnel;

(5) Standards and requirements for a State Medical Direction System, including qualifications for a state emergency medical services medical director and regional medical directors, the establishment of a State Medical Policy and Care Committee and the designation of regional medical command centers;

(6) Provision of services by emergency medical services personnel in hospital emergency rooms; and

(7) Authorization to temporarily suspend the certification of an individual emergency medical service provider prior to a hearing or notice if the commissioner finds there is probable cause that the conduct or continued service or practice of any individual certificate holder has or may create a danger to public health or safety: Provided, That the commissioner may rely on information received from a physician that serves as a medical director in finding that probable cause exists to temporarily suspend the certification; and

(7) (8) Any other rules necessary to carry out the provisions of this article.

(b) To apply for, receive and expend advances, grants, contributions and other forms of assistance from the state or federal government or from any private or public agencies or foundations to carry out the provisions of this article.

(c) To design, develop and review a Statewide Emergency Medical Services Implementation Plan. The plan shall recommend aid and assistance and all other acts necessary to carry out the purposes of this article:

(1) To encourage local participation by area, county and community officials and regional emergency medical services boards of directors; and

(2) To develop a system for monitoring and evaluating emergency medical services programs throughout the state.

(d) To provide professional and technical assistance and to make information available to regional emergency medical services boards of directors and other potential applicants or program sponsors of emergency medical services for purposes of developing and maintaining a statewide system of services.

(e) To assist local government agencies, regional emergency medical services boards of directors and other public or private entities in obtaining federal, state or other available funds and services.

(f) To cooperate and work with federal, state and local governmental agencies, private organizations and other entities as may be necessary to carry out the purposes of this article.

(g) To acquire in the name of the state by grant, purchase, gift, devise or any other methods appropriate real and personal property as may be reasonable and necessary to carry out the purposes of this article.

(h) To make grants and allocations of funds and property so acquired or which may have been appropriated to the agency to other agencies of state and local government as may be appropriate to carry out the purposes of this article.

(i) To expend and distribute by grant or bailment funds and property to all state and local agencies for the purpose of performing the duties and responsibilities of the agency all funds which it may have so acquired or which may have been appropriated by the Legislature of this state.

(j) To develop a program to inform the public concerning emergency medical services.

(k) To review and disseminate information regarding federal grant assistance relating to emergency medical services.

(l) To prepare and submit to the Governor and Legislature recommendations for legislation in the area of emergency medical services.

(m) To review, make recommendations for and assist in all projects and programs that provide for emergency medical services whether or not the projects or programs are funded through the Office of Emergency Medical Services. A review and approval shall be required for all emergency medical services projects, programs or services for which application is made to receive state or federal funds for their operation after the effective date of this act; and

(n) To take all necessary and appropriate action to encourage and foster the cooperation of all emergency medical service providers and facilities within this state.

§16-4C-9. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The commissioner may at any time upon his or her own motion, and shall, upon the written complaint of any person, cause an investigation to be conducted to determine whether grounds exist for disciplinary action under this article or legislative rules promulgated pursuant to this article.

(b) An investigator or other person who, under the direction of the commissioner or the director, gathers or reports information in good faith to the commissioner or the director, is immune from civil liability.

(c) After reviewing any information obtained through an investigation, the commissioner or director shall determine if probable cause exists that the licensee or certificate holder has violated any provision of this article or rules promulgated pursuant to this article.

(d) Upon a finding that probable cause exists that the licensee or certificate holder has violated any provision of this article or rules promulgated pursuant to this article, the commissioner or director shall provide a copy of the complaint and notice of hearing to the licensee or certificate holder. Upon a finding of probable cause that the conduct or continued service or practice of any individual certificate holder may create a danger to public health or safety, the commissioner may temporarily suspend the certification prior to a hearing or notice: Provided, That the commissioner may rely on information received from a physician that serves as a medical director in finding that probable cause exists to temporarily suspend the certification: Provided, however, That the commissioner shall simultaneously institute proceedings for a hearing in accordance with section ten of this article.

(e) The commissioner or the director may enter into a consent decree or hold a hearing for the suspension or revocation of the license or certification or the imposition of sanctions against the licensee or certificate holder.

(f) The commissioner or the director issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person or agency regulated by the article.

(g) The commissioner or the director may sign a consent decree or other legal document related to the complaint.

(h) The commissioner shall suspend or revoke any certificate, temporary certificate or license when he or she finds the holder has:

(1) Obtained a certificate, temporary certificate or license by means of fraud or deceit; or

(2) Been grossly incompetent, and/or grossly negligent as defined by the commissioner in accordance with rules or by prevailing standards of emergency medical services care; or

(3) Failed or refused to comply with the provisions of this article or any legislative rule promulgated by the commissioner or any order or final decision of the commissioner; or

(4) Engaged in any act during the course of duty which has endangered or is likely to endanger the health, welfare or safety of the public.

(i) The commissioner or the director may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the license or certification of, impose probationary conditions upon or take disciplinary action against, any licensee or certificate holder for any violation of this article or any rule promulgated pursuant to this article, once a violation has been proven by a preponderance of the evidence.

(j) Disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Administrative penalties and fines;

(4) Mandatory attendance at continuing education seminars or other training;

(5) Practicing under supervision or other restriction;

(6) Requiring the licensee or holder of a certificate to report to the commissioner or director for periodic interviews for a specified period of time;

(7) Other disciplinary action considered by the commissioner or director to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk; or

(8) Other sanctions as set forth by legislative rule promulgated pursuant to this article.

(k) The commissioner shall suspend or revoke any certificate, temporary certificate or license if he or she finds the existence of any grounds which would justify the denial of an application for the certificate, temporary certificate or license if application were then being made for it.

The bill (Eng. Com. Sub. for H. B. No. 4028), as amended, was then ordered to third reading.

On motion of Senator Unger, 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.

The nays were: None.

Absent: K. Facemyer--1.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4028) was then read a third time and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4028) passed.

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

Eng. Com. Sub. for House Bill No. 4028--A Bill to amend and reenact §16-4C-6 and §16-4C-9 of the Code of West Virginia, 1931, as amended, all relating to emergency medical services; authorizing the commissioner of the Bureau of Public Health to promulgate rules relating to the temporary suspension of a certification of an individual emergency medical service provider; providing that the commissioner may temporarily suspend the certification of an individual emergency medical service provider in certain circumstances prior to a hearing or notice; permitting the commissioner to rely on information supplied by a physician that serves as a medical director when temporarily suspending the certification of an individual emergency medical service provider; and requiring commissioner institute proceedings for a hearing if an individual emergency medical provider’s certification is temporarily suspended.

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

Eng. Com. Sub. for House Bill No. 4046, Repealing obsolete code provisions.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

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

That §16-1-16, §19-12A-3, §25-6-1, §25-6-2, §25-6-3, §25-6-4, §25-6-5, §25-6-6, §25-6-7 and §30-1-15 of the Code of West Virginia, 1931, as amended, be repealed; that §5-6-1 of said code be amended and reenacted; that §5A-1-11 of said code be amended and reenacted; that §5B-1-1a of said code be amended and reenacted; that §5B-2F-2 of said code be amended and reenacted; that §9-2-1a of said code be amended and reenacted; that §17B-2-7a of said code be amended and reenacted; that §17C-15-44 of said code be amended and reenacted; that §18-10A-2 of said code be amended and reenacted; that §19-1-3a of said code be amended and reenacted; that §19-21A-4 of said code be amended and reenacted; that §22C-12-6 of said code be amended and reenacted; that §24-1-3 of said code be amended and reenacted; that §24A-1A-2 of said code be amended and reenacted; that §24E-1-11 of said code be amended and reenacted; and that §47A-1-1 of said code be amended and reenacted, all to read as follows:

CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.

ARTICLE 6. STATE BUILDINGS.

§5-6-1. State Building Commission; composition; appointment, terms and qualifications of members; chairman and secretary; compensation and expenses; powers and duties generally; frequency of meetings.

"The State Office Building Commission of West Virginia, hereto created, shall continue in existence, but on and after February 9, 1966, shall be known and designated as the (a) The State Building Commission of West Virginia and shall continue is continued as a body corporate and as an agency of the State of West Virginia. On and after the date aforesaid, the

(b) The commission shall consist consists of the Governor, Attorney General, State Treasurer and four additional members to be appointed by the Governor by and with the advice and consent of the Senate.

(c) The terms of office for said the appointed members to be appointed by the Governor shall be is four years. except that the terms of office of the first four members so appointed by the Governor shall be for one, two, three and four years, respectively. No more than three of such the appointed members so appointed by the Governor shall be members of the same political party, nor shall any of said the appointed members be members or employees of the executive, legislative or judicial branches of government of West Virginia or any political subdivision thereof.

(d) The Governor shall be chairman of the commission. The Secretary of State shall be a member of the commission and serve as its secretary, but shall not have the right to vote upon matters before the commission. All members of the commission shall be citizens and residents of this state.

(e) The members of the commission shall be paid or reimbursed for their necessary expenses incurred under this article, but shall receive no compensation for their services as members or officers of the commission: Provided, That each member of the commission appointed by the Governor shall, in addition to such reimbursement for necessary expenses, receive an amount not to exceed the same compensation as is paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law for each day or substantial portion thereof that he or she is engaged in the work of the commission. Such expenses and per diem shall be paid solely from funds provided under the authority of this article, and the commission shall not proceed to exercise or carry out any authority or power herein given it to bind said commission beyond the extent to which money has been provided under the authority of this article.

(f) On or before the fifteenth day of each month, the commission shall prepare and transmit to the President and Minority Leader of the Senate and the Speaker and the Minority Leader of the House of Delegates a report covering the activities of the said commission for the preceding calendar month.

Pursuant to the provisions of article ten, chapter four of this code, the state building commission shall continue to exist until the first day of July, two thousand.

CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.

ARTICLE 1. DEPARTMENT OF ADMINISTRATION.

§5A-1-11. State Americans with Disabilities Coordinator.

(a) There is hereby created continued within the Department of Administration the position of the state Americans with Disabilities Coordinator, who shall be appointed by the Secretary of the Department of Administration with input from the chairperson from each of the following four councils:

(1) The Developmental Disabilities Council;

(2) The Statewide Independent Living Council;

(3) The Mental Health Planning Council; and

(4) The State Rehabilitation Council.

(b) The coordinator shall be a full-time employee, and shall have an in-depth working knowledge of the challenges facing persons with disabilities. The coordinator may be a current employee of the Department of Administration or other state agency employee.

(1) Advise the Director of Personnel in the development of comprehensive policies and programs for the development, implementation and monitoring of a statewide program to assure compliance with 42 U.S.C. §12101, et seq., the federal Americans with Disabilities Act;

(2) Assist in the formulation of rules and standards relating to the review, investigation and resolution of complaints of discrimination in employment, education, housing and public accommodation;

(3) Consult and collaborate with state and federal agency officials in the state plan development;

(4) Consult and collaborate with agency Americans with disabilities officers on the appropriate training for managers and supervisors on regulations and issues;

(5) Represent the state on local, state and national committees and panels related to Americans with disabilities;

(6) Advise the Governor and agency heads on Americans with disabilities issues;

(7) Consult with state equal employment opportunity officers on the hiring of persons with disabilities; and

(8) Be available to inspect and advise the leasing section of the Division of Purchasing on all physical properties owned or leased by the State of West Virginia for compliance with 42 U.S.C. §12101, et seq., the federal Americans with Disabilities Act.

(d)(1) The Secretary of the Department of Administration may assess, charge and collect fees from each state spending unit which utilizes the services of the coordinator, for the direct costs and expenses incurred by the coordinator in providing those services. Costs and expenses include travel, materials, equipment and supplies. Moneys shall be collected through the Division of Finance.

(2) A state spending unit shall agree in writing to all costs and expenses before the services by the Americans with disabilities coordinator are rendered.

(e) There is hereby created continued in the Department of Administration a special fund to be named the “Americans with Disabilities Coordinator Fund”, which shall be an interest-bearing account and may be invested in accordance with the provisions of article six, chapter twelve of this code, with the interest income a proper credit to the fund. Funds paid into the account may be derived from the following sources:

(1) All moneys received from state spending units for the costs and expenses incurred by the state Americans with disabilities coordinator for providing services related to the state’s implementation and compliance with 42 U.S.C. §12101, et seq., the federal Americans with Disabilities Act;

(2) Any gifts, grants, bequests, transfers or donations which may be received from any governmental entity or unit or any person, firm, foundation or corporation; and

(3) All interest or return on investment accruing to the fund.

(f) Moneys in the fund are to be used for the costs and expenses incurred pursuant to this section. Any balance including accrued interest in this special fund at the end of any fiscal year shall not revert to the General Revenue Fund, but shall remain in the fund for use by the Secretary of the Department of Administration for providing additional Americans with disabilities coordinator services within the State of West Virginia in the ensuing fiscal years.

(g) The Secretary of the Department of Administration shall report annually on the fund to the Governor, President of the Senate and Speaker of the House of Delegates. The report must be on CD ROM or other electronic media and shall not be in print format.

(h) The state Americans with disabilities coordinator shall continue to exist until the first day of July, two thousand nine, unless sooner terminated, continued or reestablished pursuant to the provisions of article ten, chapter four of this code.

CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.

ARTICLE 1. DEPARTMENT OF COMMERCE.

§5B-1-1a. Marketing and Communications Office.

(a) There is hereby created continued in the Department of Commerce the Marketing and Communications Office. The office is created to provide marketing and communications goods and services to other state agencies, departments, units of state or local government or other entity or person.

(b) The office is authorized to charge for goods and services it provides to other state agencies. The Secretary of the Department of Commerce shall approve a fee schedule determining the amounts that may be charged for goods and services provided by the office to other state agencies.

(c) All moneys collected shall be deposited in a special account in the State Treasury to be known as the Department of Commerce Marketing and Communications Operating Fund. Expenditures from the fund shall be for the operation of the office and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article two, chapter eleven-b of this code. Provided, That for the fiscal year ending June 30, 2008, expenditures are authorized from collections and shall be expended at the discretion of the Secretary of the Department of Commerce rather than pursuant to appropriation by the Legislature.

(d) Any balance remaining at the end of any fiscal year shall not revert to the General Revenue Fund, but shall remain in the fund for expenditures in accordance with the purposes set forth in this section.

(e) The Department of Commerce shall develop and maintain a system of annual or more frequent performance measures useful in gauging the efficiency and effectiveness of the office’s marketing and communications activities. The measures shall also reflect the office’s efficiency and effectiveness with respect to commercially available marketing and communications services and any private sector benchmarks which might be identified or created. For the purposes of this section, “performance measures” means income, output, quality, self-sufficiency and outcome metrics.

(f) Beginning on January 1, 2008, and annually every year thereafter On January 1 of each year, the Secretary of the Department of Commerce shall report to the Joint Committee on Government and Finance, the Joint Standing Committee on Finance and the Joint Commission on Economic Development on the performance of the office. This report is to include a statement of the performance measurements for the office developed by the Secretary of the Department of Commerce and an analysis of the office’s performance.

(g) Pursuant to the provisions of article ten, chapter four of this code, the Marketing and Communications Office shall continue to exist until the first day of July, two thousand ten, unless sooner terminated, continued or reestablished.

ARTICLE 2F. DIVISION OF ENERGY.

§5B-2F-2. Purpose; office of Director for Energy Development; director to be member of Public Energy Authority; division to develop energy policy and development plan; contents of energy policy and development plan; and division to promote energy initiatives.

(a) Effective July 1, 2007, The Division of Energy is created continued as a state agency under the Department of Commerce. The division may receive federal funds. The division shall be administered by a director, who shall be appointed by the Governor, by and with the advice and consent of the Senate, and shall continue to serve until his or her successor is appointed and qualified as provided. The director shall be selected with special preference and consideration given to his or her training, experience, capacity and interest in energy policy and development activities.

(b) Creation of the The division is intended to provide leadership for developing energy policies emphasizing the increased efficiency of energy use, the increased development and production of new and existing domestic energy sources, the increased awareness of energy use on the environment and the economy, dependable, efficient and economical statewide energy systems capable of supporting the needs of the state, increased energy self-sufficiency where the ratio of indigenous to imported energy use is increased, reduce the ratio energy consumption to economic activity and maintain low-cost energy. The energy policies and development plans shall also provide direction for the private sector.

(c) The director shall administer the daily operations of the Public Energy Authority provided under the provisions of chapter five-d of this code. The director shall also have authority over the Office of Coalfield Community Development, created by the provisions of article two-a of this chapter, and the energy efficiency program existing under the West Virginia Development Office which are hereby transferred to the division. The director shall effectuate coordination of these entities relative to the purposes provided in this article.

(d) The division shall develop an energy policy and shall report the same back to the Governor and the Joint Committee on Government and Finance before December 1, 2007. The energy policy shall be a five-year plan setting forth the state's energy policies and shall provide a direction for the private sector. Prior to the expiration of the energy policy, the division shall begin review of the policy and submit a revised energy policy to the Governor and the Joint Committee on Government and Finance six months before the expiration of the policy.

(e) The director shall be a member of the Public Energy Authority and as such shall attend and participate in all official meetings and public hearings conducted under the auspices of the authority.

(f) The division shall prepare and submit an annual energy development plan to the Governor and the Joint Committee on Government and Finance on or before December 1 of each year. The development plan shall relate to the division’s implementation of the energy policy and the activities of the division during the previous year. The development plan shall include any recommended legislation. The Public Energy Authority, the Office of Coalfield Community Development, the energy efficiency program, the Department of Environmental Protection and the Public Service Commission, in addition to their other duties prescribed by this code, shall assist the division and the director in the development of an energy policy and related development plans. The energy development plan shall set forth the plans for implementing the state's energy policy and shall provide a direction for the private sector. The energy development plan shall recognize the powers of the Public Energy Authority as to development and financing of projects under its jurisdiction and shall make such recommendations as are reasonable and practicable for the exercise of such powers.

(g) The division shall hold public hearings and meetings with notice to receive public input regarding proposed energy policies and development plans. The energy policy and development plans required by subsections (d) and (f) of this section shall address increased efficiency of energy use, traditional and alternative energy, water as a resource and a component of energy production, energy distribution systems, the siting of energy facilities, the increased development and production of new and existing domestic energy sources, increased awareness of energy use on the environment and the economy, energy infrastructure, the development and implementation of renewable, clean, technically innovative and advanced energy projects in this state. Projects may include, without limitation, solar and wind energy, low-impact hydro power, geothermal, biomass, landfill gas, fuel cells, renewable hydrogen fuel technologies, waste coal, coal mine methane, coal gasification to ultraclean fuels, solid waste to fuel grade ethanol and coal liquefaction technologies.

(h) The division may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code designed to implement an energy policy and development plan in accordance with the provisions of this chapter.

(i) The energy policy and development plans required by subsections (d) and (f) of this section shall identify and report on the energy infrastructure in this state and include without limitation energy infrastructure related to protecting the state's essential data, information systems and critical government services in times of emergency, inoperativeness or disaster. In consultation with the Director of the Division of Homeland Security and Emergency Management, the director of the division shall encourage the development of energy infrastructure and strategic resources that will ensure the continuity of governmental operations in situations of emergency, inoperativeness or disaster.

(j) In preparing or revising the energy policy and development plan, the division may rely upon internal staff reports or the advice of outside advisors or consultants and may procure such services with the consent of the Secretary of Commerce. The division may also involve national, state and local government leadership and energy experts.

(k) The division shall prepare an energy use database, including without limitation, end-use applications and infrastructure needs for different classes of energy users including residential, commercial and industrial users, data regarding the interdependencies and sources of electricity, oil, coal, water and gas infrastructure, data regarding energy use of schools and state-owned facilities and collect data on the impact of the energy policy and development plan on the decisions and strategies of energy users of the state.

(l) The division shall promote collaboration between the state's universities and colleges, private industry and nonprofit organizations to encourage energy research and leverage available federal energy research and development resources.

(m) The division shall promote initiatives to enhance the nation's energy security through research and development directed at transforming the state's energy resources into the resources that fuel the nation.

(n) The Performance Evaluation and Research Division of the Legislative Auditor’s office shall perform an agency review of the Division of Energy in 2010 as part of its review of the Department of Commerce as set forth in article four, chapter ten of this code.

(o) (n) The division shall work with the President of the United States and his or her administration to develop a plan that would allow West Virginia to become the leader in transitioning the United States to a new energy future.

(p) (o) The division is to determine the best way for West Virginia to utilize its resources and any federal funding to develop the technologies that are necessary for such a transition.

(q) (p) The division is to clearly articulate West Virginia’s position on an energy solution for the United States that encompasses clean coal, natural gas, transtech energy technologies and renewable energy technologies.

(r) (q) The division shall develop and distribute an informational program and policies that emphasize the importance of West Virginia energy resources and their positive impact on the eastern seaboard and the nation.

(s) (r) The division shall monitor legal challenges to the energy industries in the state and submit a report quarterly to the Joint Committee on Government and Finance. The report shall contain information relating to any litigation that challenges any statute that could affect the production, distribution and utilization of natural resources of the state.

CHAPTER 9. HUMAN SERVICES.

ARTICLE 2. COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES AND RESPONSIBILITIES GENERALLY.

§9-2-1a. Department of Health and Human Resources.

The Department of Health and Human Resources shall be charged with the administration of this chapter. Pursuant to the provisions of article ten, chapter four of this code, the Department of Health and Human Resources shall continue to exist until the first day of July, two thousand six, unless sooner terminated, continued or reestablished.

CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.

ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.

§17B-2-7a. Driver's Licensing Advisory Board.

(a) The Driver's Licensing Advisory Board is hereby continued. The board shall consist of five members to be appointed by the Governor, by and with the advice and consent of the Senate, for terms of three years, except that as to the members first appointed, two shall be appointed for a term of three years, two shall be appointed for a term of two years and one shall be appointed for a term of one year, all from July 1, 1974. All vacancies occurring on the board shall be filled by the Governor, by and with the advice and consent of the Senate. One member of the board shall be an optometrist duly registered to practice optometry in this state and the other four members of the board shall be physicians or surgeons duly licensed to practice medicine or surgery in this state. The Governor shall appoint persons qualified to serve on the board who, in his opinion, will best serve the work and function of the board.

(b) The board shall advise the Commissioner of Motor Vehicles as to vision standards and all other medical criteria of whatever kind or nature relevant to the licensing of persons to operate motor vehicles under the provisions of this chapter. The board shall, upon request, advise the Commissioner of Motor Vehicles as to the mental or physical fitness of an applicant for, or the holder of, a license to operate a motor vehicle. The board shall furnish the commissioner with all such medical standards, statistics, data, professional information and advice as he may reasonably request.

(c) The members of the board shall receive compensation and expense reimbursement in an amount not to exceed the same compensation and expense reimbursement as is paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law, for each day or substantial portion thereof engaged in the performance of official duties.

Pursuant to the provisions of article ten, chapter four of this code, the driver's licensing advisory board shall continue to exist until the first day of July, two thousand nine.

CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.

ARTICLE 15. EQUIPMENT.

§17C-15-44. Safety equipment and requirements for motorcyclists, motorcycles, motor-driven cycles and mopeds; Motorcycle Safety Standards and Education Committee.

(a) No person shall operate or be a passenger on any motorcycle or motor-driven cycle unless the person is wearing securely fastened on his or her head by either a neck or chin strap a protective helmet designed to deflect blows, resist penetration and spread impact forces. Any helmet worn by an operator or passenger shall meet the current performance specifications established by the American National Standards Institute Standard, Z 90.1, the United States Department of Transportation Federal Motor Vehicle Safety Standard No. 218 or Snell Safety Standards for Protective Headgear for Vehicle Users.

(b) No person shall operate or be a passenger on any motorcycle or motor-driven cycle unless the person is wearing safety, shatter-resistant eyeglasses (excluding contact lenses), or eyegoggles or face shield that complies with the performance specifications established by the American National Standards Institute for Head, Eye and Respiratory Protection, Z 2.1. In addition, if any motorcycle, motor-driven cycle or moped is equipped with a windshield or windscreen, the windshield or windscreen shall be constructed of safety, shatter-resistant material that complies with the performance specifications established by the Department of Transportation Federal Motor Vehicle Safety Standard No. 205 and American National Standards Institute, Safety Glazing Materials for Glazing Motor Vehicles Operated on Land Highways, Standard Z 26.1.

(c) No person shall operate a motorcycle, motor-driven cycle or moped on which the handlebars or grips are more than fifteen inches higher than the uppermost part of the operator's seat when the seat is not depressed in any manner.

(d) A person operating a motorcycle, motor-driven cycle or moped shall ride in a seated position facing forward and only upon a permanent operator's seat attached to the vehicle. No operator shall carry any other person nor shall any other person ride on the vehicle unless the vehicle is designed to carry more than one person, in which event a passenger may ride behind the operator upon the permanent operator's seat if it is designed for two persons, or upon another seat firmly attached to the vehicle to the rear of the operator's seat and equipped with footrests designed and located for use by the passenger or in a sidecar firmly attached to the vehicle. No person shall ride side saddle on a seat. An operator may carry as many passengers as there are seats and footrests to accommodate those passengers. Additional passengers may be carried in a factory produced sidecar provided that there is one passenger per seat. Passengers riding in a sidecar shall be restrained by safety belts.

(e) Every motorcycle, motor-driven cycle and moped shall be equipped with a rearview mirror affixed to the handlebars or fairings and adjusted so that the operator shall have a clear view of the road and condition of traffic behind him or her for a distance of at least two hundred feet.

(f) There is hereby created continued a six member Motorcycle Safety and Education Committee consisting of: The Superintendent of the State Police or a designee; the Commissioner of Motor Vehicles or a designee; the Director of the West Virginia Safety Council or a designee; a licensed motorcycle operator; an owner of a motorcycle dealership; and a supplier of aftermarket nonfranchised motorcycle supplies. The nongovernmental representatives shall be appointed by the Governor with the advice and consent of the Senate, shall serve without compensation, and the terms shall be for three years, except that as to the members first appointed, one shall be appointed for a term of one year, one shall be appointed for a term of two years and one shall be appointed for a term of three years. Members may be reappointed to the committee.

The committee shall continue to exist pursuant to the provisions of article ten, chapter four of this code until the first day of July, one thousand nine hundred ninety-nine, to allow for the completion of a preliminary performance review by the joint committee on government operations.

(g) The committee is hereby authorized to recommend to the Superintendent of Public Safety types and makes of protective helmets, eye protection devices and equipment offered for sale, purchased or used by any person. The committee is authorized to make recommendations to the Commissioner of Motor Vehicles regarding the use of the moneys in the Motorcycle Safety Fund created under section seven, article one-d, chapter seventeen-b of this code.

CHAPTER 18. EDUCATION.

ARTICLE 10A. REHABILITATION SERVICES.

§18-10A-2. Division of Rehabilitation Services.

(a) The Division of Rehabilitation Services is hereby transferred to continued under the Department of Education and the Arts created in article one, chapter five-f of this code. The secretary shall appoint any such board, commission or council over the division to the extent required by federal law to qualify for federal funds for providing rehabilitation services for disabled persons. The secretary and such the boards, commissions or councils as he or she is required by federal law to appoint are authorized and directed to cooperate with the federal government to the fullest extent in an effort to provide rehabilitation services for disabled persons.

(b) References in this article or article ten-b of this chapter to the state Board of Vocational Education, the state Board of Rehabilitation or the state board as the governing board of vocational or other rehabilitation services or facilities means the Secretary of Education and the Arts. All references in the code to the Division of Vocational Rehabilitation means the Division of Rehabilitation Services and all references to the Director of the Division of Vocational Rehabilitation means the Director of the Division of Rehabilitation Services.

Pursuant to the provisions of article ten, chapter four of this code, the Division of Rehabilitation Services shall continue to exist until the first day of July, two thousand four.

CHAPTER 19. AGRICULTURE.

ARTICLE 1. DEPARTMENT OF AGRICULTURE.

§19-1-3a. Marketing and Development Division duties.

In recognition that article ten, chapter four of this code requires a preliminary performance review of the rural resource division of the Department of Agriculture and that performance standards must be stated before such audit can be performed, the rural resources division is hereby formally established and renamed the marketing and development division in the Department of Agriculture. The duties of the Marketing and Development Division are to:

(1) Establish marketing, promotional and development programs to advance West Virginia agriculture in the domestic and international markets; to provide

(2) Provide grading, inspection and market news services to the various elements of the West Virginia agricultural industry; and to regulate

(3) Regulate and license individuals involved in the marketing of agricultural products.

ARTICLE 21A. CONSERVATION DISTRICTS.

§19-21A-4. State Conservation Committee.

(a) The State Conservation Committee is continued. It serves as an agency of the state and is to perform the functions conferred upon it in this article. The committee consists of the following ten members:

(1) Four citizen members;

(2) The following ex officio members or his or her designee:

(A) The Director of the state Cooperative Extension Service;

(B) The Director of the state Agricultural and Forestry Experiment Station;

(D) The State Commissioner of Agriculture, who is the chairperson of the committee;

(E) The Director of the Division of Forestry; and

(F) The President of the West Virginia Association of Conservation Districts.

(b) The Governor shall appoint, by and with the consent of the Senate, the four citizen members. Members shall be appointed for four-year terms, which are staggered in accordance with the initial appointments under prior enactment of this section. In the event of a vacancy, the appointment is for the unexpired term.

(c) The committee may invite the Secretary of Agriculture of the United States of America to appoint one person to serve with the committee as an advisory member.

(d) The committee shall keep a record of its official actions, shall adopt a seal, which shall be judicially noticed, and may perform those acts, hold public hearings and adopt or propose for legislative approval rules necessary for the execution of its functions under this article.

(e) The State Conservation Committee may employ an administrative officer, technical experts and other agents and employees, permanent and temporary, as it requires. The administrative officer and support staff shall be known as the West Virginia Conservation Agency. The committee shall determine their qualifications, duties and compensation. The committee may call upon the Attorney General of the state for legal services it requires. It may delegate to its chairperson, to one or more of its members, or to one or more agents or employees powers and duties it considers proper. The committee may secure necessary and suitable office accommodations and the necessary supplies and equipment. Upon request of the committee, for the purpose of carrying out any of its functions, the supervising officer of any state agency or of any state institution of learning shall, insofar as may be possible, under available appropriations and having due regard to the needs of the agency to which the request is directed, assign or detail to the committee, members of the staff or personnel of the agency or institution of learning and make special reports, surveys or studies required by the committee.

(f) A member of the committee holds office so long as he or she retains the office by virtue of which he or she is serving on the committee. A majority of the committee is a quorum and the concurrence of a majority in any matter within their duties is required for its determination. The chairperson and members of the committee may receive no compensation for their services on the committee, but are entitled to reimbursement of expenses, including traveling expenses necessarily incurred in the discharge of their duties on the committee. The committee shall:

(1) Require the execution of surety bonds for all employees and officers who are entrusted with funds or property;

(2) Provide for the keeping of a full and accurate public record of all proceedings and of all resolutions, rules and orders issued or adopted; and

(3) Provide for an annual audit of the accounts of receipts and disbursements.

(g) In addition to other duties and powers conferred upon the state Conservation Committee, it may:

(1) Offer appropriate assistance to the supervisors of conservation districts, organized as provided in this article, in the carrying out of any of their powers and programs;

(2) Keep the supervisors of each of the several districts, organized under the provisions of this article, informed of the activities and experience of all other districts organized under this article and facilitate an interchange of advice and experience between the districts and cooperation between them;

(3) Coordinate the programs of the several conservation districts so far as this may be done by advice and consultation;

(4) Secure the cooperation and assistance of the United States and any of its agencies and of agencies of this state in the work of the districts;

(5) Disseminate information throughout the state concerning the activities and programs of the conservation districts and encourage the formation of the districts in areas where their organization is desirable;

(6) Accept and receive donations, gifts, contributions, grants and appropriations in money, services, materials or otherwise from the United States or any of its agencies, from the State of West Virginia or from other sources and use or expend the money, services, materials or other contributions in carrying out the policy and provisions of this article, including the right to allocate the money, services or materials in part to the various conservation districts created by this article in order to assist them in carrying on their operations; and

(7) Obtain options upon and acquire by purchase, exchange, lease, gift, grant, bequest, devise or otherwise any property, real or personal, or rights or interests in the property; maintain, administer, operate and improve any properties acquired; receive and retain income from the property and to expend the income as required for operation, maintenance, administration or improvement of the properties or in otherwise carrying out the purposes and provisions of this article; and sell, lease or otherwise dispose of any of its property or interests in the property in furtherance of the purposes and the provisions of this article. Money received from the sale of land acquired in the small watershed program shall be deposited in the special account of the state Conservation Committee and expended as provided in this article;

(8) To promulgate emergency and legislative Propose rules for legislative approval to effectuate the provisions of this article; as amended and reenacted by the Legislature during the 2005 regular session of the Legislature and

(9) Upon a Governor’s proclamation declaring a state of emergency or federal disaster declaration, the state committee, its employees or agents may enter any water of the state for the purpose of removing debris and other obstruction which impede water flow and present additional flood hazards. The agency shall make reasonable efforts to secure the permission of the landowner before entering any private property in connection with these removal activities. The exercise of this limited authority does not constitute taking of private property or trespass. This authority shall continue for the duration of the Governor’s proclamation or the federal disaster declaration.

(10) The State Conservation Committee is continued until July 1, 2012, pursuant to the provisions of article four, chapter ten of the Code of West Virginia, unless sooner terminated, continued or reestablished pursuant to the provisions of that article.

CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS, AUTHORITIES, COMMISSIONS AND COMPACTS.

ARTICLE 12. OHIO RIVER VALLEY WATER SANITATION COMMISSION.

§22C-12-6. Legislative declaration.

This article shall take effect and become operative and the compact be executed for and on behalf of this state only from and after the approval, ratification, and adoption and entering into thereof by the states of New York, Pennsylvania, Ohio and Virginia.

After having conducted a preliminary performance review through its joint committee on government operations, pursuant to article ten, chapter four of this code,

The Legislature hereby finds and declares that West Virginia should remain a member of the compact. Accordingly, notwithstanding the provisions of article ten, chapter four of this code, West Virginia shall continue to be a member of this compact until the first day of July, two thousand six, unless sooner terminated, continued or reestablished by act of the Legislature.

CHAPTER 24. PUBLIC SERVICE COMMISSION.

ARTICLE 1. GENERAL PROVISIONS.

§24-1-3. Public Service Commission; membership; chairman; compensation.

(a) The Public Service Commission of West Virginia is continued and directed as provided by this chapter, chapter twenty-four-a, chapter twenty-four-b and chapter twenty-four-d of this code. After having conducted a performance audit through its joint committee on government operations, pursuant to section nine, article ten, chapter four of this code, the Legislature hereby finds and declares that the Public Service Commission should be continued and reestablished. Accordingly, notwithstanding the provisions of section five, article ten, chapter four of this code, the Public Service Commission shall continue to exist until the first day of July, two thousand three. The Public Service Commission may sue and be sued by that name.

(b) The Public Service Commission shall consist consists of three members who shall be appointed by the Governor, with the advice and consent of the Senate. The commissioners shall be citizens and residents of this state and at least one of them shall be duly licensed to practice law in West Virginia, with not less than ten years’ actual work experience in the legal profession as a member of a state bar. No more than two of the commissioners shall be members of the same political party. Each commissioner shall, before entering upon the duties of his or her office, take and subscribe to the oath provided by section five, article IV of the Constitution of this state. The oath shall be filed in the Office of the Secretary of State. The Governor shall designate one of the commissioners to serve as chairman at the Governor’s will and pleasure. The chairman shall be the chief administrative officer of the commission. The Governor may remove any commissioner only for incompetency, neglect of duty, gross immorality, malfeasance in office or violation of subsection (c) (d) of this section.

(b) The unexpired terms of members of the Public Service Commission at the time this subsection becomes effective are continued. Upon expiration of the terms, appointments (c) Appointments are for terms of six years, except that an appointment to fill a vacancy is for the unexpired term only. The commissioners whose terms are terminated by the provisions of this subsection are eligible for reappointment.

(c) (d) No person while in the employ of, or holding any official relation to, any public utility subject to the provisions of this chapter or holding any stocks or bonds of a public utility subject to the provisions of this chapter or who is pecuniarily interested in a public utility subject to the provisions of this chapter may serve as a member of the commission or as an employee of the commission. Nor may any No commissioner may be a candidate for or hold public office or be a member of any political committee while acting as a commissioner. nor may any No commissioner or employee of the commission may receive any pass, free transportation or other thing of value, either directly or indirectly, from any public utility or motor carrier subject to the provisions of this chapter. In case any of the commissioners If a commissioner becomes a candidate for any public office or a member of any political committee, the Governor shall remove him or her from office and shall appoint a new commissioner to fill the vacancy created.

(d) (e) The salaries of members of the Public Service Commission and the manner in which they are paid established by the prior enactment of this section are continued. Effective July 1, 2001, the The annual salary of each commissioner provided in section two-a, article seven, chapter six of this code shall be paid in monthly installments from the special funds in the percentages that follow:

(1) From the Public Service Commission Fund collected under the provisions of section six, article three of this chapter, eighty percent;

(2) From the Public Service Commission Motor Carrier Fund collected under the provisions of section six, article six, chapter twenty-four-a of this code, seventeen percent; and

(3) From the Public Service Commission Gas Pipeline Safety Fund collected under the provisions of section three, article five, chapter twenty-four-b of this code, three percent.

(f) In addition to the salary provided for all commissioners in section two-a, article seven, chapter six of this code, the chairman of the commission shall receive $5,000 per annum to be paid in monthly installments from the Public Service Commission Fund collected under the provisions of section six, article three of this chapter.

CHAPTER 24A. MOTOR CARRIERS OF PASSENGERS AND PROPERTY FOR HIRE.

ARTICLE 1A. COMMERCIAL VEHICLE REGULATION.

§24A-1A-2. Commercial Motor Vehicle Weight and Safety Enforcement Advisory Committee; purpose; members; terms.

(a) There is created the The Commercial Motor Vehicle Weight and Safety Enforcement Advisory Committee is continued. The purpose of which is to study the implementation of the commercial motor vehicle weight and safety enforcement program set forth in this article.

(b) The committee consists of the following members:

(1) One member who is an employee of the Division of Highways, to be appointed by the Commissioner of Highways;

(2) One member who is an employee of the Public Service Commission, to be appointed by the Chairman of the Public Service Commission;

(3) One member who is a State Police officer, to be appointed by the Superintendent of the State Police;

(4) One member who is an employee of the Division of Motor Vehicles, to be appointed by the Commissioner of Motor Vehicles;

(5) One member who is an employee of the Development Office, to be appointed by the Governor;

(6) One member who is representative of the coal industry, to be appointed by the Governor;

(7) One member of the Senate, to be appointed by the President of the Senate;

(8) One member of the House of Delegates, to be appointed by the Speaker of the House of Delegates;

(9) Two citizen members, to be appointed by the Governor;

(10) One member of the largest organization representing coal miners, to be appointed by the Governor; and

(11) One member of the largest organization representing natural resource transportation drivers, to be appointed by the Governor.

(d) The committee shall annually nominate from its members a chair, who shall hold office for one year.

(e) The committee shall hold at least four meetings each year or more often as may, in the discretion of the chair, be necessary to effectuate the purposes of this article.

(f) The public members of the committee may receive compensation for attendance at official meetings, not to exceed the amount paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law.

(g) Committee members may be reimbursed for actual and necessary expenses incurred for each day or portion of a day engaged in the discharge of committee duties in a manner consistent with guidelines of the Travel Management Office of the Department of Administration.

(h) On or before January 1 2004, and of each subsequent year, thereafter the committee shall submit to the Governor and to the Legislature a report of its recommendations for improving the effectiveness of the commercial vehicle weight and safety enforcement program.

(i) The commercial vehicle weight and safety enforcement advisory committee shall continue to exist until the first day of July, two thousand seven, pursuant to the provisions of article ten, chapter four of this code, unless sooner terminated, continued or reestablished pursuant to the provisions of that article.

CHAPTER 24E. STATEWIDE ADDRESSING AND MAPPING.

ARTICLE 1. WEST VIRGINIA STATEWIDE ADDRESSING AND MAPPING BOARD.

§24E-1-11. Advisory board; duties of board and county commissions.

(a) The board shall terminate on July 1, 2009, after which it shall have one year to wind up its affairs pursuant to the provisions of article ten, chapter four of this code. Upon final termination, the board shall transfer all its

(a) The Statewide Addressing and Mapping Board is continued as an advisory board within the Division of Homeland Security and Emergency Management.

(b) Any right, title and interest the board has to any maps, compilations or other works that it created as a result of the statewide addressing and mapping is transferred to the respective county commissions.

(b) Upon final termination of the board, county

(c) County commissions shall maintain and update the addressing and mapping systems within their respective jurisdictions under the standards established by the board, as updated thereafter by the Division of Homeland Security and Emergency Management, of the Department of Military Affairs and Public Safety under this section and shall supply the updated information to the division in the format it establishes through its rule-making authority.

(c) Except as provided in subsection (b) of this section, upon final termination of the board, the powers and duties of the board shall be transferred to the Division of Homeland Security and Emergency Management.

(d) Prior to the final termination of the board, the division may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code which shall become effective only upon the final termination of the board. The rules shall:

(1) Maintain and update the standards for statewide addressing and mapping;

(2) Establish standard reasonable fees, based on cost, to be charged by county commissions for copies or use of any maps, compilations or other works created as a result of the statewide addressing and mapping, subject to the exemptions provided under section nine of this article;

(3) Govern centralization and interoperability of the county systems within the integrated statewide addressing and mapping system; and

(4) Ensure the public safety in any manner the division considers advisable.

(e) Upon final termination of the board, the division may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code for the purposes set forth in this article.

(f) Upon final termination of the board, the division may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code.

(g) Rules (d) The rules in effect as of the reenactment of this article during the 2007 regular session will on July 1, 2012, shall remain in effect until amended, modified, repealed or replaced pursuant to this article.

(h) Effective July 1, 2010, The Statewide Addressing and Mapping Board shall become an advisory board within the Division of Homeland Security and Emergency Management and will continue to be composed as set forth in this article and the members will serve at the will and pleasure of the Governor.

CHAPTER 47A. WEST VIRGINIA LENDING AND CREDIT RATE BOARD.

ARTICLE 1. LENDING AND CREDIT RATE BOARD.

§47A-1-1. Legislative findings; creation, membership, powers and duties of board; termination of board.

(a) The Legislature hereby finds and declares that:

(1) Changes in the permissible charges on loans, credit sales or transactions, forbearance or other similar transactions requires specialized knowledge of the needs of the citizens of West Virginia for credit for personal and commercial purposes and knowledge of the availability of such credit at reasonable rates to the citizens of this state while affording a competitive return to persons extending such credit;

(2) Maximum charges on loans, credit sales or transactions, forbearance or other similar transactions executed in this state should be prescribed from time to time to reflect changed economic conditions, current interest rates and finance charges throughout the United States and the availability of credit within the state in order to promote the making of such loans in this state; and

(3) The prescribing of such maximum interest rates and finance charges can be accomplished most effectively and flexibly by a board comprised of the heads of designated government agencies, university schools of business and administration and members of the public.

(b) In view of the foregoing findings, it is the purpose of this section to establish continue the West Virginia Lending and Credit Rate Board and authorize said board to prescribe semiannually the maximum interest rates and finance charges on loans, credit sales or transactions, forbearance or similar transactions made pursuant to this section subject to the provisions, conditions and limitations hereinafter set forth and to authorize lenders, sellers and other creditors to charge up to the maximum interest rates or finance charges so fixed. The rates prescribed by the board are alternative rates and any creditor may utilize either the rate or rates set by the board or any other rate or rates which the creditor is permitted to charge under any other provision of this code.

(1) The director of the Governor’s office of Economic and Community Development;

(2) The West Virginia State Treasurer;

(3) The West Virginia Banking Commissioner;

(4) The deans of the schools of business and administration at Marshall University and West Virginia University;

(5) The Director of the Division of Consumer Protection of the Attorney General's Office; and

(6) Three members of the public appointed by the Governor with the advice and consent of the Senate. The members of the public shall be appointed for terms of six years each, and until their successors are appointed and qualified; except that of the members first appointed, one shall be appointed for a term of two years, one for a term of four years and one for a term of six years. A member who has served one full term of six years shall be ineligible for appointment for the next succeeding term. Vacancies shall be filled by appointment of the Governor with the advice and consent of the Senate, or if any vacancy remains unfilled for three months, by a majority vote of the board. The West Virginia Banking Commissioner shall serve as chairperson of the board and the rate or rates set by the board shall be determined by a majority vote of those members of the board in attendance at the respective board meeting.

(d) The West Virginia Lending and Credit Rate Board is hereby authorized and directed to meet after December 31, 1983, on the first Tuesday of April and on the first Tuesday of October of each year or more or less frequently as required by the circumstances and to prescribe by order a maximum rate of interest and finance charge for the next succeeding six months, effective on June 1 and on December 1, for any loans, credit sales or transactions, forbearance or similar transactions made pursuant to this section. In fixing said maximum rates of interest and finance charge, the board shall take into consideration prevailing economic conditions, including the monthly index of long-term United States government bond yields for the preceding calendar month, yields on conventional commercial short-term loans and notes throughout West Virginia and throughout the United States and on corporate interest-bearing securities of high quality, the availability of credit at reasonable rates to the citizens of this state which afford a competitive return to persons extending such credit and such other factors as the board may determine.

(e) Any petition proposing a change in the prescribed maximum rates of interest and finance charges must be filed in the office of the Banking Commissioner no later than the February 15 in order to be voted on at the board meeting on the first Tuesday of April and no later than August 15 in order to be voted on at the board meeting on the first Tuesday of October. Whenever any change in the prescribed maximum rates of interest and finance charges is proposed the board shall schedule a hearing, at least fifteen days prior to the board meeting at which the proposed rates of interest and finance charge will be voted on by the members of the board, and shall give all interested parties the opportunity to testify and to submit information at such public hearing that is relevant. Notice of the scheduled public hearing shall be issued and disseminated to the public at least twenty days prior to the scheduled date of the hearing.

(f) The board shall prescribe by order issued not later than April 20 and not later than October 20, in accordance with the provisions of subsection (d) of this section, the maximum rates of interest and finance charge for the next succeeding six months for any loan, credit sale, forbearance or similar transaction made pursuant to this section and shall cause such the maximum rate of interest and finance charge to be issued and disseminated to the public, such maximum rate of interest and finance charge to be effective on June 1 and December 1 for the next succeeding six months.

(g) Notwithstanding the other provisions of this chapter, the West Virginia Lending and Credit Rate Board shall not be required to meet if no petition has been filed with the board requesting a hearing and interest rates and economic conditions have not changed sufficiently to indicate that any change in the existing rate order would be required, and there are not at least two board members who concur that a meeting of the board is necessary. If the board does not meet, the maximum rates of interest and finance charges prescribed by the board in the existing rate order shall remain in full force and effect until the next time the board meets and prescribes different maximum rates of interest and finance charges.

(h) If circumstances and economic conditions require, the chairperson or any three board members, at any time, may call an emergency interim meeting of the West Virginia Lending and Credit Rate Board, at which time the chairperson shall give ten days’ notice of the scheduled emergency meeting to the public. All interested parties shall have the opportunity to be heard and to submit information at such the emergency meeting that is relevant. Any and all emergency rate board orders shall be effective within thirty days from the date of such the emergency meeting.

(i) Each member of the board, except those whose regular salary is paid by the State of West Virginia, shall receive $75 per diem while actually engaged in the performance of the duties of the board. Each member shall be reimbursed for all reasonable and necessary expenses actually incurred during the performance of their duties, except that in the event the expenses are paid by a third party the members shall not be reimbursed by the state. The reimbursement shall be paid out of the special revenue account of the Division of Banking upon a requisition upon the State Auditor, properly certified by the Banking Commissioner.

(j) In setting the maximum interest rates and finance charges, the board may set varying rates based on the type of credit transaction, the term of transaction, the type of debtor, the type of creditor and other factors relevant to determination of such determining the rates. In addition, the board may set varying rates for ranges of principal balances within a single category of credit transactions.

(k) Pursuant to the provisions of article ten, chapter four of this code, the West Virginia lending and credit rate board shall continue to exist until the first day of July, two thousand five.

The bill (Eng. Com. Sub. for H. B. No. 4046), as amended, was then ordered to third reading.

On motion of Senator Unger, 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.

The nays were: None.

Absent: K. Facemyer--1.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4046) was then read a third time and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4046) passed.

The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4046--A Bill to repeal §16-1-16, §19-12A-3, §25-6-1, §25-6-2, §25-6-3, §25-6-4, §25-6-5, §25-6-6, §25-6-7 and §30-1-15 of the Code of West Virginia, 1931, as amended; to amend and reenact §5-6-1 of said code; to amend and reenact §5A-1-11 of said code; to amend and reenact §5B-1-1a of said code; to amend and reenact §5B-2F-2 of said code; to amend and reenact §9-2-1a of said code; to amend and reenact §17B-2-7a of said code; to amend and reenact §17C-15-44 of said code; to amend and reenact §18-10A-2 of said code; to amend and reenact §19-1-3a of said code; to amend and reenact §19-21A-4 of said code; to amend and reenact §22C-12-6 of said code; to amend and reenact §24-1-3 of said code; to amend and reenact §24A-1A-2 of said code; to amend and reenact §24E-1-11 of said code; and to amend and reenact §47A-1-1 of said code, all relating to obsolete code provisions; repealing outdated language; deleting references to continuation under sunset provisions; and updating code provisions.

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

Eng. Com. Sub. for House Bill No. 4062, Creating an in-home direct care workforce registry.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

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

§16-5P-15. Establishment of In-home Care Registry.

(a) There is established within the Bureau of Senior Services an in-home care worker registry which is to be maintained by the bureau. The purpose of the registry is to provide the public a list of in-home care workers, along with their qualifications, who voluntarily agree to be included and who have passed a criminal background check.

(b) "In-home care worker" means an unlicensed person who provides personal care or other services and supports to persons with disabilities or to the elderly in order to enhance their well-being and which involves face-to-face direct contact with the person. Functions performed may include but are not limited to assistance and training in activities of daily living, personal care services, and job-related supports.

(c) The bureau shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, to establish the following:

(1) The registry of in-home care workers;

(2) The requirements for inclusion on the registry as an ‘in-home care worker,’ including educational attainment;

(3) A fee schedule of proposed rates for those services and supports provided by the in-home care worker based upon qualifications of the in-home care workers, such as educational attainment;

(4) Requirement of completion and passage of a criminal background check, consisting of checking the National Instant Criminal Background Check System and the West Virginia criminal history record responses. If an in-home care worker is included on the list with a criminal history indicated on his or her criminal back ground check, that information shall be noted on the registry. The bureau may not remove a person from the registry if the criminal background check reveals any negative information;

(5) How a person obtains information from the registry; and

(6) Any other requirement necessary to implement the provisions of this section.

The bill (Eng. Com. Sub. for H. B. No. 4062), as amended, was then ordered to third reading.

On motion of Senator Unger, 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.

The nays were: None.

Absent: K. Facemyer--1.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4062) was then read a third time and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4062) passed with its title.

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

Eng. Com. Sub. for House Bill No. 4068, Providing that antique motor vehicles be valued at their salvage value for personal property tax purposes.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on Finance, was reported by the Clerk and adopted:

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

That §11-1C-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §11-1C-5c, all to read as follows:

ARTICLE 1C. FAIR AND EQUITABLE PROPERTY VALUATION.

§11-1C-5. Tax commissioner powers and duties.

(a) In addition to the powers and duties of the Tax Commissioner in other provisions of this article and this code, the Tax Commissioner shall have the power and duty to:

(1) Perform such duties and exercise such powers as may be necessary to accomplish the purposes of this article;

(2) Determine the methods of valuation for both real and personal property in accordance with the following:

(A) As to personal property, the Tax Commissioner shall provide a method to appraise each major specie of personal property in the state so that all such items of personal property are valued in the same manner no matter where situated in the state, shall transmit these methods to each county assessor who shall use these methods to value the various species of personal property. The Tax Commissioner shall periodically conduct such studies as are necessary to determine that such methods are being followed. Such method shall be in accordance with the provisions of article five of this chapter: Provided, That notwithstanding any other provision of this code to the contrary, the several all county assessors shall appraise motor vehicles as follows: The State Tax Commissioner shall annually compile a schedule of automobile values based upon the lowest values shown in a nationally accepted used car guide, which said schedule shall be furnished to each assessor and shall be used by the several all county assessors to determine the assessed value for all motor vehicles in an amount equal to sixty percent of said the lowest values or sixty percent of $700, whichever is higher.

(B) As to managed timberland as defined in section two of this article, the Tax Commissioner shall provide a method to appraise such property in the state so that all such property is valued in the same manner no matter where it is situated in the state, which shall be a valuation based on its use and productive potential as managed timberland, which may be accorded special valuation as forestlands as authorized by section fifty-three, article six of the Constitution of West Virginia: Provided, That timberland that does not qualify for identification as managed timberland shall be valued at market value: Provided, however, That the Tax Commissioner may not implement any rules or regulations in title one hundred ten, which relate to valuation or classification of timberland: Provided further, That on or before October 1, 1990, the Tax Commissioner shall, in accordance with chapter twenty-nine-a of this code, promulgate new rules relating to the valuation and classification of timberland.

(C) As to farmland used, occupied and cultivated by an owner or bona fide tenant, the Tax Commissioner shall provide a method to appraise such property in the state so that all such property is valued in the same manner no matter where it is situated in the state, which valuation shall be arrived at according to the fair and reasonable value of the property for the purpose for which it is actually used regardless of what the value of the property would be if used for some other purpose, in accordance with section one, article three of this chapter and as authorized by subsection B, section one-b, article X of the Constitution of West Virginia.

(D) As to public utility property, the Tax Commissioner shall prescribe appropriate methods for the appraisal of the various types of property subject to taxation as public utilities and the types of property which are to be included in the operating property of a public utility and thereby not subject to taxation by the county assessor. Only parcels or other property, or portions thereof, which are an integral part of the public utility's function as a utility shall be included as operating property and assessed by the board of public works under provisions of article six of this chapter;

(3) Evaluate the performance of each assessor based upon the criteria established by the commission and each county's approved plan and take appropriate measures to require any assessor who does not meet these criteria or adequately carry out the provisions of the plan to correct any deficiencies. Such evaluation shall include the periodic review of the progress of each assessor in conducting the appraisals required in sections seven and nine of this article and in following the approved valuation plan. If the Tax Commissioner determines that an assessor has substantially failed to perform the duties required by said sections, the Tax Commissioner shall take all necessary steps, including the appointment of one or more special assessors in accordance with the provisions of section one, article three of this chapter, or utilize such other authority as the commissioner has over county assessors pursuant to other provisions of this code as may be necessary to complete the tasks and duties imposed by this article: Provided, That a writ of mandamus shall be the appropriate remedy if the Tax Commissioner fails to perform his or her statutory duty provided for in section five, article one of this chapter.

(4) Submit to the Legislature, on or before February 15 of each year, a preliminary statewide aggregate tax revenue projection and other information which shall assist the Legislature in its deliberations regarding county board of education levy rates pursuant to section six-f, article eight of this chapter, which information shall include any amount of reduction required by said section six-f;

(5) Maintain the valuations each year by making or causing to be made such surveys, examinations, audits and investigations of the value of the several classes of property in each county which should be listed and taxed under the several classifications; and

(6) Establish by uniform rules a procedure for the sale of computer generated material and appraisal manuals. Any funds received as a result of the sale of such reproductions shall be deposited to the appropriate account from which the payment for reproduction is made.

(b) The Tax Commissioner may adopt any regulation adopted prior to January 1, 1990, pursuant to article one-a of this chapter, which adoption shall not constitute an implementation of the statewide mass reappraisal of property. Such adoption, including context modifications made necessary by the enactment of this article, shall occur on or before July 1, 1991, through inclusion in the plan required by section ten of this article or inclusion in the minute record of the valuation commission. Upon the adoption of any such regulations, any modification or repeal of such regulation shall be in accordance with the provisions of article three, chapter twenty-nine-a of this code.

§11-1C-5c. Antique motor vehicle valuation for personal property tax purposes.

Notwithstanding any other provision of this code to the contrary, any vehicle that is registered as an antique motor vehicle as defined in section three-a, article ten, chapter seventeen-a of this code and that is not used for general transportation shall be assigned an assessed value of $5,000 for purposes of ad valorem property taxes.

Thereafter, on motion of Senator Unger, the Senate reconsidered the vote by which it immediately hereinbefore adopted the Finance committee amendment to Engrossed Committee Substitute for House Bill No. 4068.

The vote thereon having been reconsidered,

The question again being on the adoption of the Finance committee amendment to the bill.

Thereafter, at the request of Senator Prezioso, as chair of the Committee on Finance, and by unanimous consent, the Finance committee amendment to the bill was withdrawn.

At the request of Senator Beach, as chair of the Committee on Transportation and Infrastructure, unanimous consent being granted, the unreported Transportation and Infrastructure committee amendment to the bill was withdrawn.

The following amendment to Engrossed Committee Substitute for House Bill No. 4068, from the Committee on Finance, was again reported by the Clerk:

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

That §11-1C-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §11-1C-5c, all to read as follows:

ARTICLE 1C. FAIR AND EQUITABLE PROPERTY VALUATION.

§11-1C-5. Tax commissioner powers and duties.

(a) In addition to the powers and duties of the Tax Commissioner in other provisions of this article and this code, the Tax Commissioner shall have the power and duty to:

(1) Perform such duties and exercise such powers as may be necessary to accomplish the purposes of this article;

(2) Determine the methods of valuation for both real and personal property in accordance with the following:

§11-1C-5c. Antique motor vehicle valuation for personal property tax purposes.

The question being on the adoption of the Finance committee amendment to the bill (Eng. Com. Sub. for H. B. No. 4068), and on this question, Senator Barnes demanded the yeas the nays.

On this question, the yeas were: Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--30.

The nays were: Barnes, Kirkendoll and Sypolt--3.

Absent: K. Facemyer

So, a majority of those present and voting having voted in the affirmative, the President declared the Finance committee amendment to the bill adopted.

The bill (Eng. Com. Sub. for H. B. No. 4068), as amended, was then ordered to third reading.

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

The nays were: Barnes and Edgell--2.

Absent: K. Facemyer.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4068) was then read a third time and put upon its passage.

On the passage of the bill, the yeas were: Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Helmick, Jenkins, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Wills, Yost and Kessler (Mr. President)--28.

The nays were: Barnes, Kirkendoll, Klempa, Sypolt and Williams--5.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4068) passed.

At the request of Senator Beach, as chair of the Committee on Transportation and Infrastructure, and by unanimous consent, the unreported Transportation and Infrastructure committee amendment to the title of the bill was withdrawn.

The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4068--A Bill to amend and reenact §11-1C-5 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §11-1C-5c, all relating to appraisal value of certain motor vehicles for purposes of ad valorem property taxes; providing that the minimum appraised value of a motor vehicle is $700 for purposes of ad valorem property taxes; and providing that the appraised value of an antique motor vehicle is $5,000 for purposes of ad valorem property taxes.

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

On this question, the yeas were: Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Helmick, Jenkins, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Wills, Yost and Kessler (Mr. President)--28.

The nays were: Barnes, Kirkendoll, Klempa, Sypolt and Williams--5.

Absent: K. Facemyer--1.

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. 4068) takes effect July 1, 2012.

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

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

On motion of Senator Unger, the Senate recessed until 2:45 p.m. today.

Upon expiration of the recess, the Senate reconvened and, at the request of Senator Unger, unanimous consent being granted, returned to the fifth order of business.

Filed Conference Committee Reports

The Clerk announced the following conference committee report had been filed at 3:00 p.m. today:

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

The Senate again proceeded to the ninth order of business, the next bill coming up in numerical sequence being,

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

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4118, Including the surviving spouse and a designated individual previously chosen by the deceased as a person who may designate the manner of disposition of a deceased person's body.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

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

That §30-6-3 and §30-6-22 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section designated §30-6-22a; and that §61-12-9 of said code be amended and reenacted, all to read as follows:

CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 6. BOARD OF FUNERAL SERVICE EXAMINERS.

§30-6-3. Definitions.

As used in this article, the following words and terms have the following meanings, unless the context clearly indicates otherwise:

(a) “Apprentice” means a person who is preparing to become a licensed funeral director and embalmer and is learning the practice of embalming, funeral directing or cremation under the direct supervision and personal instruction of a duly licensed embalmer or funeral director.

(b) “Authorized representative” means a person legally authorized or entitled to order the cremation of the deceased, as established by rule. An authorized representative may include in the following order of precedence:

(1) The deceased, who has expressed his or her wishes regarding the disposal of their remains through a last will and testament, an advance directive or preneed funeral contract, as defined in section two, article fourteen, chapter forty-five of this code;

(2) The surviving spouse of the deceased, unless a petition to dissolve the marriage was pending at the time of decedent’s death;

(3) An individual previously designated by the deceased as the person with the right to control disposition of the deceased’s remains in a writing signed and notarized by the deceased: Provided, That no person may be designated to serve in such capacity for more than one nonrelative at any one time;

(2) (4) The deceased’s next of kin;

(3) (5) A court order;

(4) (6) A public official who is charged with arranging the final disposition of an indigent deceased; or

(5) (7) A representative of an institution who is charged with arranging the final disposition of a deceased who donated his or her body to science.

(d) “Certificate” means a certification by the board to be a crematory operator.

(e) “Courtesy card holder” means a person who only practices funeral directing periodically in West Virginia and is a licensed embalmer and funeral director in a state which borders West Virginia.

(f) “Cremated remains” or “cremains” means all human remains, including foreign matter cremated with the human, recovered after the completion of cremation.

(g) “Cremation” means the mechanical or thermal process whereby a dead human body is reduced to ashes and bone fragments and then further reduced by additional pulverization, burning or recremating when necessary.

(h) “Crematory” means a licensed place of business where a deceased human body is reduced to ashes and bone fragments and includes a crematory that stands alone or is part of or associated with a funeral establishment.

(i) “Crematory operator” means a person certified by the board to operate a crematory.

(j) “Crematory operator in charge” means a certified crematory operator who accepts responsibility for the operation of a crematory.

(k) “Deceased” means a dead human being for which a death certificate is required.

(l) “Embalmer” means a person licensed to practice embalming.

(m) “Embalming” means the practice of introducing chemical substances, fluids or gases used for the purpose of preservation or disinfection into the vascular system or hollow organs of a dead human body by arterial or hypodermic injection for the restoration of the physical appearance of a deceased.

(n) “Funeral” means a service, ceremony or rites performed for the deceased with a body present.

(o) “Funeral directing” means the business of engaging in the following:

(1) The shelter, custody or care of a deceased;

(2) The preparation of a deceased for burial or other disposition;

(3) The arranging or supervising of a funeral or memorial service for a deceased; and

(4) The maintenance of a funeral establishment for the preparation, care or disposition of a deceased.

(p) “Funeral director” means a person licensed to practice funeral directing.

(q) “Funeral establishment” means a licensed place of business devoted to: the care, preparation and arrangements for the transporting, embalming, funeral, burial or other disposition of a deceased. A funeral establishment can include a licensed crematory.

(r) “Funeral service licensee” means a person licensed after July 1, 2003, to practice embalming and funeral directing.

(s) “License” means a license, which is not transferable or assignable, to:

(1) Practice embalming and funeral directing;

(2) Operate a crematory or a funeral establishment.

(t) “Licensee” means a person holding a license issued under the provisions of this article.

(u) “Licensee in charge” means a licensed embalmer and funeral director who accepts responsibility for the operation of a funeral establishment.

(v) “Memorial service” means a service, ceremony or rites performed for the deceased without a body present.

(w) “Mortuary” means a licensed place of business devoted solely to the shelter, care and embalming of the deceased.

(x) “Person” means an individual, partnership, association, corporation, not-for-profit organization or any other organization.

(y) “Registration” means a registration issued by the board to be an apprentice to learn the practice of embalming, funeral directing or cremation.

(z) “State” means the State of West Virginia.

§30-6-22. Disposition of body of deceased person; penalty.

(a) No public officer, employee, physician or surgeon, or other person having a professional relationship with the deceased, shall send, or cause to be sent to an embalmer, funeral director or crematory operator the body of a deceased without first inquiring the desires of the next of kin; or any person who may be chargeable with the funeral expenses of the deceased. deceased who has designated his or her wishes regarding the disposal of their remains through a last will and testament, an advance directive or preneed funeral contract, as defined in section two, article fourteen, chapter forty-five of this code; the surviving spouse of the deceased, unless a petition to dissolve the marriage was pending at the time of decedent’s death; and, an individual previously designated by the deceased as the person with the right to control disposition of the deceased’s remains in a writing signed and notarized by the deceased: Provided, That no person may be designated to serve in such capacity for more than one nonrelative at any one time. If next of kin or person can be found, his or her authority and direction there is no last will ans testament, advance directive or preneed funeral contract, surviving spouse, or designated person, then the authority and direction of any next of kin or person who may be chargeable with the funeral expenses of the deceased shall be used as to the disposal of the body of the deceased. The provisions of this subsection are not applicable if the remains of the decedent are subject to disposition pursuant to subsection (b) of this section.

(b) Notwithstanding any provision of this code to the contrary, a United States Department of Defense Record of Emergency Data Form (DD Form 93) executed by a declarant who dies while serving in a branch of the United States Military as defined in 10 U. S. C. §1481 constitutes a valid form of declaration instrument and governs the disposition of the declarant’s remains. The person named in the form as the person authorized to direct disposition of the remains may arrange for the final disposition of the declarant’s last remains.

(c) Any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500, nor more than $1,000, or imprisoned not less than ten days nor more than ninety days, or both.

§30-6-22a. Right of disposition; preneed contract; affidavit on disposition of remains; role of county commission; liability of funeral home.

(a) Notwithstanding section twenty-two of this article, a person who is eighteen years of age or older and of sound mind, by entering into a preneed funeral contract, as defined in section two, article fourteen, chapter forty-seven of this code, may direct the location, manner and conditions of the disposition of the person's remains and the arrangements for funeral goods and services to be provided upon the person's death. The disposition directions and funeral prearrangements that are contained in a preneed funeral contract are not subject to cancellation to revision unless any resources set aside to fund the preneed funeral contract are insufficient under the terms of the preneed funeral contract to carry out the disposition directions and funeral prearrangements contained in the contract.

(b) As to any matter not addressed in a preneed funeral contract as described in subsection (a) of this section and except as provided in subsection (c) of this section, the right to control the disposition of the remains of a deceased person, the location, manner and conditions of disposition, and arrangements for funeral goods and services to be provided vests in the following, in the order named, provided that the person is eighteen years or older and is of sound mind:

(1)(A) A person designated by the decedent as the person with the right to control the disposition in an affidavit executed in accordance with paragraph (B) of this subdivision; and

(B) A person who is eighteen years of age or older and of sound mind wishing to authorize another person to control the disposition of his or her remains may execute an affidavit before a notary public in substantially the following form:

“I, ________________, do hereby designate ___________________ with the right to control the disposition of my remains upon my death. I ___ have/____ have not attached specific directions concerning the disposition of my remains with which the designee shall substantially comply, provided that these directions are lawful and there are sufficient resources in my estate to carry out the directions.

______________________________

Signed

State of _______________

County of ______________

I, _________________________, a Notary Public of said County, do certify that _____________________________________, as principal whose name is signed to the writing above bearing date on the ______ day of _________, 20____, has this day acknowledged the same before me.

Given under my hand this ______ day of ______, 20__.

My commission expires:_______________________________

____________________________

Notary Public”;

(2) The surviving spouse of the decedent;

(3) The sole surviving child of the decedent or, if there is more than one child of the decedent, the majority of the surviving children. However, less than one half of the surviving children shall be vested with the rights under this section if they have used reasonable efforts to notify all other surviving children of their instructions and are not aware of any opposition to those instructions on the part of more than one half of all surviving children;

(4) The surviving parent or parents of the decedent. If one of the surviving parents is absent, the remaining parent shall be vested with the rights and duties under this section after reasonable efforts have been unsuccessful in locating the absent surviving parent;

(5) The surviving brother or sister of the decedent or, if there is more than one sibling of the decedent, the majority of the surviving siblings. However, less than the majority of surviving siblings shall be vested with the rights and duties under this section if they have used reasonable efforts to notify all other surviving siblings of their instructions and are not aware of any opposition to those instructions on the part of more than one half of all surviving siblings;

(6) The surviving grandparent of the decedent or, if there is more than one surviving grandparent, the majority of the grandparents. However, less than the majority of the surviving grandparents shall be vested with the rights and duties under this section if they have used reasonable efforts to notify all other surviving grandparents of their instructions and are not aware of any opposition to those instructions on the part of more than one half of all surviving grandparents;

(7) The guardian of the person of the decedent at the time of the decedent's death if one had been appointed;

(8) The personal representative of the estate of the decedent;

(9) The person in the classes of the next degree of kinship, in descending order, under the laws of descent and distribution to inherit the estate of the decedent. If there is more than one person of the same degree, any person of that degree may exercise the right of disposition;

(10) If the disposition of the remains of the decedent is the responsibility of the state or a political subdivision of the state, the public officer, administrator or employee responsible for arranging the final disposition of decedent's remains; or

(11) In the absence of any person under subdivisions (1) through (10) of this subsection, any other person willing to assume the responsibilities to act and arrange the final disposition of the decedent's remains, including the funeral director with custody of the body, after attesting in writing that a good-faith effort has been made to no avail to contact the individuals under subdivisions (1) through (10) of this subsection.

(c) A person entitled under law to the right of disposition forfeits that right, and the right is passed on to the next qualifying person as listed in subsection (b) of this section, in the following circumstances:

(1) Any person charged with murder or voluntary manslaughter in connection with the decedent's death and whose charges are known to the funeral director. However, if the charges against that person are dismissed or if the person is acquitted of the charges, the right of disposition is returned to the person;

(2) Any person who does not exercise his or her right of disposition within two days of notification of the death of decedent or within three days of decedent's death, whichever is earlier;

(3) If the person and the decedent are spouses and a petition to dissolve the marriage was pending at the time of decedent's death.

(d) Any person signing a funeral service agreement, cremation authorization form or any other authorization for disposition shall be deemed to warrant the truthfulness of any facts set forth therein, including the identity of the decedent whose remains are to be buried, cremated or otherwise disposed of, and the party's authority to order the disposition. A funeral home has the right to rely on that funeral service agreement or authorization and shall have the authority to carry out the instructions of the person or persons the funeral home reasonably believes holds the right of disposition. The funeral home has no responsibility to independently investigate the existence of any next of kin or relative of the decedent where a means of disposition is fully set forth in a preneed funeral contract or other written directive of the deceased in accordance with this section. If there is more than one person in a class who are equal in priority and the funeral home has no knowledge of any objection by other members of that class, the funeral home may rely on and act according to the instructions of the first person in the class to make funeral and disposition arrangements, if no other person in that class provides written objections to the funeral home.

(e) No funeral establishment or funeral director who relies in good faith upon the instructions of a preneed funeral contract, written directive of the deceased, or an individual claiming the right of disposition in accordance with this section shall be subject to criminal or civil liability or subject to disciplinary action under this section for carrying out the disposition of the remains in accordance with those instructions.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 12. POSTMORTEM EXAMINATIONS.

§61-12-9. Permits required for cremation; fee.

(a) It is the duty of any person cremating, or causing or requesting the cremation of, the body of any dead person who died in this state, to secure a permit for the cremation from the Chief Medical Examiner, the county medical examiner or county coroner of the county wherein the death occurred. Any person who willfully fails to secure a permit for a cremation, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $200. A permit for cremation shall be acted upon by the Chief Medical Examiner, the county medical examiner or the county coroner after review of the circumstances surrounding the death, as indicated by the death certificate. The person requesting issuance of a permit for cremation shall pay a reasonable fee, as determined by the Chief Medical Examiner, to the county medical examiner or coroner or to the Office of the Chief Medical Examiner, as appropriate, for issuance of the permit.

(b) Any person operating a crematory who does not perform a cremation pursuant to the terms of a cremation contract, or pursuant to the order of a court of competent jurisdiction, within the time contractually agreed upon, or, if the cremation contract does not specify a time period, within twenty-one days of receipt of the deceased person’s remains by the crematory, whichever time is less, is guilty of a misdemeanor.

(c) Any person operating a crematory who fails to deliver the cremated remains of a deceased person, pursuant to the terms of a cremation contract, or pursuant to the order of a court of competent jurisdiction, within the time contractually agreed upon, or, if the cremation contract does not specify a time period, within thirty-five days of receipt of the deceased person’s remains by the crematory, whichever time is less, is guilty of a misdemeanor.

(d) Any person convicted of a violation of the provisions of subsection (b) or (c) of this section shall be fined not less than $1,000 nor more than $5,000 or confined in the county or regional jail for a period not to exceed six months, or both.

(e) In any criminal proceeding alleging that a person violated the time requirements of this section, it is a defense to the charge that a delay beyond the time periods provided for in this section were caused by circumstances wholly outside the control of the defendant.

(f) For purposes of this section, “cremation contract” means an agreement to perform a cremation, as a “cremation” is defined in subsection (g), section three, article six, chapter thirty of this code. A cremation contract is an agreement between a crematory and any authorized person or entity, including, but not limited to, the following persons in order of precedence:

(2) The surviving spouse of the deceased, unless a petition to dissolve the marriage was pending at the time of decedent’s death;

(2) (4) The deceased person’s next of kin;

(3) (5) A public official charged with arranging the final disposition of an indigent deceased person or an unclaimed corpse;

(4) (6) A representative of an institution who is charged with arranging the final disposition of a deceased who donated his or her body to science;

(5) (7) A public officer required by statute to arrange the final disposition of a deceased person;

(6) (8) Another funeral establishment; or

(7) (9) An executor, administrator or other personal representative of the deceased.

The bill (Eng. Com. Sub. for H. B. No. 4118), as amended, was then ordered to third reading.

On motion of Senator Unger, 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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--32.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4118) was then read a third time and put upon its passage.

On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--32.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4118) passed.

The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4118--A Bill to amend and reenact §30-6-3 and §30-6-22 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section designated §30-6-22a; and to amend and reenact §61-12-9 of said code, all relating to cremation, preneed funeral contracts and disposition of remains generally; adding a definition of persons authorized to order cremation; clarifying required inquiry about deceased’s desires; prioritizing individuals authorized to express desires of the deceased; clarifying funeral directors responsibilities; establishing the right to control the disposition of the remains of a deceased person; determining who has that right; setting forth how that right may be forfeited; adding a definition of person authorized to agree to a cremation contract; and establishing an order of precedence among persons as to cremation and disposition of remains.

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

Eng. Com. Sub. for House Bill No. 4245, Permitting certain auxiliary lighting on motorcycles.

On second reading, coming up in regular order, was read a second time.

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

On pages four through eight, by striking out all of section forty-four;

And,

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

That §17C-15-23 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:.

The bill (Eng. Com. Sub. for H. B. No. 4245), as amended, was then ordered to third reading.

On motion of Senator Unger, 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.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4245) was then read a third time and put upon its passage.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4245) passed.

The following amendment to the title of the bill, from the Committee on Transportation and Infrastructure, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4245--A Bill to amend and reenact §17C-15-23 of the Code of West Virginia, 1931, as amended, relating to lighting equipment; and permitting certain auxiliary lighting on motorcycles.

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

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

On second reading, coming up in regular order, was read a second time.

The following amendments to the bill, from the Committee on Banking and Insurance, were reported by the Clerk, considered simultaneously, and adopted:

On page nine, section seven, line one hundred eighteen, after the word “psychologist” by inserting the words “and in accordance with a treatment plan developed from a comprehensive evaluation by a certified behavior analyst”;

On page sixteen, section six-e, line eleven, after the word “psychologist” by inserting the words “and in accordance with a treatment plan developed from a comprehensive evaluation by a certified behavior analyst”;

On page twenty-three, section three-v, line eleven, after the word “psychologist” by inserting the words “and in accordance with a treatment plan developed from a comprehensive evaluation by a certified behavior analyst”;

On page twenty-eight, section seven-k, line fourteen, after the word “psychologist” by inserting the words “and in accordance with a treatment plan developed from a comprehensive evaluation by a certified behavior analyst”;

On page thirty-four, section eight-j, line fourteen, after the word “psychologist” by inserting the words “and in accordance with a treatment plan developed from a comprehensive evaluation by a certified behavior analyst”;

And,

On page thirty-seven, section eight-j, line fifty-three, by striking out the word “board”.

The bill (Eng. Com. Sub. for H. B. No. 4260), as amended, was then ordered to third reading.

On motion of Senator Unger, 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.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4260) was then read a third time and put upon its passage.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4260) passed with its title.

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

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

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4310, Prohibiting sex offenders from living or working within one thousand feet of the outer perimeter of a school, child care facility, playground or a victim's home.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

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

ARTICLE 12. PROBATION AND PAROLE.

§62-12-26. Extended supervision for certain sex offenders; sentencing; conditions; supervision provisions; supervision fee.

(a) Notwithstanding any other provision of this code to the contrary, any defendant convicted after the effective date of this section of a violation of section twelve, article eight, chapter sixty-one of this code or a felony violation of the provisions of article eight-b, eight-c or eight-d of said that chapter shall, as part of the sentence imposed at final disposition, be required to serve, in addition to any other penalty or condition imposed by the court, a period of supervised release of up to fifty years: Provided, That the period of supervised release imposed by the court pursuant to this section for a defendant convicted after the effective date of this section as amended and reenacted during the first extraordinary session of the Legislature, 2006, of a violation of section three or seven, article eight-b, chapter sixty-one of this code and sentenced pursuant to section nine-a of said that article, shall be no less than ten years: Provided, however, That a defendant designated after the effective date of this section as amended and reenacted during the first extraordinary session of the Legislature, 2006, as a sexually violent predator pursuant to the provisions of section two-a, article twelve, chapter fifteen of this code shall be subject, in addition to any other penalty or condition imposed by the court, to supervised release for life: Provided further, That pursuant to the provisions of subsection (g) of this section, a court may modify, terminate or revoke any term of supervised release imposed pursuant to subsection (a) of this section.

(b) Any person required to be on supervised release for a minimum term of ten years or for life pursuant to the provisos of subsection (a) of this section also determined by a court of this or another jurisdiction to be a sexually violent predator or any person convicted of a felony sexual offense in this or another jurisdiction where the victim was twelve years of age or younger and the perpetrator was 18 years of age or older at the time of the offense shall be further prohibited from:

(1) Establishing a residence or accepting employment within one thousand feet from the grounds of a school or child care facility or within one thousand feet of the residence of a victim or victims of any sexually violent offenses for which the person was convicted. For the purposes of this subdivision, “residence” includes the yard, grounds, and outbuildings surrounding the residence which are part of the titled property; “child care facility” includes the classrooms, buildings, playground areas, parking lots and common areas utilized by children while attending the child care facility;“school” means an educational facility comprised of one or more buildings including school grounds, used by students during regular school hours or during any school-sponsored function or extracurricular activities; “school grounds” includes the land owned by the board of education on which a school is built together with such other school bond owned land used by students for play, recreation or athletic events while attending school.

(2) Establishing a residence or any other living accommodation in a household in which a child under sixteen resides if the person has been convicted of a sexually violent offense against a child, unless the person is one of the following:

(i) (A) The child’s parent;

(ii) (B) The child’s grandparent; or

(iii) (C) The child’s stepparent and the person was the stepparent of the child prior to being convicted of a sexually violent offense, the person’s parental rights to any children in the home have not been terminated, the child is not a victim of a sexually violent offense perpetrated by the person, and the court determines that the person is not likely to cause harm to the child or children with whom such person will reside: Provided, That nothing in this subsection shall preclude a court from imposing residency or employment restrictions as a condition of supervised release on defendants other than those subject to the provision of this subsection.

(c) The period of supervised release imposed by the provisions of this section shall begin upon the expiration of any period of probation, the expiration of any sentence of incarceration or the expiration of any period of parole supervision imposed or required of the person so convicted, whichever expires later.

(d) Any person sentenced to a period of supervised release pursuant to the provisions of this section shall be supervised by a multijudicial circuit probation officer, if available. Until such time as a multijudicial circuit probation officer is available, the offender shall be supervised by the probation office of the sentencing court or of the circuit in which he or she resides.

(e) A defendant sentenced to a period of supervised release shall be subject to any or all of the conditions applicable to a person placed upon probation pursuant to the provisions of section nine of this article: Provided, That any defendant sentenced to a period of supervised release pursuant to this section shall be required to participate in appropriate offender treatment programs or counseling during the period of supervised release unless the court deems the offender treatment programs or counseling to no longer be appropriate or necessary and makes express findings in support thereof.

Within ninety days of the effective date of this section as amended and reenacted during the first extraordinary session of the Legislature, 2006, the Secretary of the Department of Health and Human Resources shall propose rules and emergency rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code establishing qualifications for sex offender treatment programs and counselors based on accepted treatment protocols among licensed mental health professionals.

(f) The sentencing court may, based upon defendant's ability to pay, impose a supervision fee to offset the cost of supervision. Said fee shall not exceed $50 per month. Said fee may be modified periodically based upon the defendant's ability to pay.

(g) Modification of conditions or revocation. -- The court may:

(1) Terminate a term of supervised release and discharge the defendant released at any time after the expiration of two years of supervised release, pursuant to the provisions of the West Virginia Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the defendant released and the interests of justice;

(2) Extend a period of supervised release if less than the maximum authorized period was previously imposed or modify, reduce or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, consistent with the provisions of the West Virginia Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision;

(3) Revoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release without credit for time previously served on supervised release if the court, pursuant to the West Virginia Rules of Criminal Procedure applicable to revocation of probation, finds by clear and convincing evidence that the defendant violated a condition of supervised release, except that a defendant whose term is revoked under this subdivision may not be required to serve more than the period of supervised release;

(4) Order the defendant to remain at his or her place of residence during nonworking hours and, if the court so directs, to have compliance monitored by telephone or electronic signaling devices, except that an order under this paragraph may be imposed only as an alternative to incarceration.

(h) Written statement of conditions. -- The court shall direct that the probation officer provide the defendant with a written statement at the defendant's sentencing hearing that sets forth all the conditions to which the term of supervised release is subject and that it is sufficiently clear and specific to serve as a guide for the defendant's conduct and for such supervision as is required.

(i) Supervised release following revocation. -- When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of supervised release authorized under subsection (a) of this section, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such term of supervised release shall not exceed the term of supervised release authorized by this section less any term of imprisonment that was imposed upon revocation of supervised release.

(j) Delayed revocation. -- The power of the court to revoke a term of supervised release for violation of a condition of supervised release and to order the defendant to serve a term of imprisonment and, subject to the limitations in subsection (i) of this section, a further term of supervised release extends beyond the expiration of the term of supervised release for any period necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.

(k) The amendment to subsection (b) of this section enacted during the 2012 regular session of the Legislature shall apply only to residences of offenders established after the effective date of the amendments.

The bill (Eng. Com. Sub. for H. B. No. 4310), as amended, was then ordered to third reading.

On motion of Senator Unger, 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.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4310) was then read a third time and put upon its passage.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4310) passed.

The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4310--A Bill to amend and reenact §62-12-26 of the Code of West Virginia, 1931, as amended, relating to limitations and restrictions placed on sex offenders who have been adjudicated sexually violent predator or convicted of a sexual offense against a child twelve years of age or younger; and clarifying the statutory restrictions against such persons living or working within one thousand feet of a school, child care facility or residence of a former victim; defining terms.

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

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

On second reading, coming up in regular order, was read a second time and ordered to third reading.

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

On second reading, coming up in regular order, was read a second time and ordered to third reading.

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

On second reading, coming up in regular order, was read a second time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4396, West Virginia Fire, EMS and Law-Enforcement Officer Survivor Benefit Act.

On second reading, coming up in regular order, was reported by the Clerk.

At the request of Senator Palumbo, and by unanimous consent, further consideration of the bill was deferred until the conclusion of bills on today's second reading calendar.

Eng. Com. Sub. for House Bill No. 4451, Ensuring that county executive committees have control of designating the persons who serve as ballot commissioner.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

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

ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.

§3-1-19. Ballot commissioners; selection; duties generally; vacancies.

(a) In each county in the state, the Board of Ballot Commissioners shall be comprised of:

(1) The clerk of the county commission while holding office; and two

(2) Two other persons appointed by him or her one from each of the two political parties which cast the largest and second largest number of votes in the state at the last preceding general election shall constitute a board of ballot commissioners as follows:

(A) One person appointed by the county executive committee of the political party that cast the largest number of votes in the state at the last preceding general election; and

(B) One person appointed by the county executive committee of the political party that cast the second largest number of votes in the state at the last preceding general election.

(b) If the county executive committees do not make the appointments in a timely manner, then the county clerk shall make the appointments.

(d) It shall be the duty of the county clerk to notify the chairman of the respective county executive committees of the two parties, at least five days before the time of the making of the appointments. the time and place of making the appointments

(e) If at any time after notice is given, and before or on the day so fixed for making appointments, the chairman of each of the committees shall designate, in writing, a member of such his or her party as ballot commissioner. Each designee shall be appointed if he or she meets the qualifications of a voter: Provided, That a ballot commissioner cannot be a candidate for any office in any election held during the time he or she is serving as ballot commissioner.

(f) Ballot commissioners shall be appointed between the fifteenth and thirtieth days of January, in each year in which a general election is to be held, for a term of two years beginning on February 1 next ensuing. They shall perform the duties of

(g) The ballot commissioners shall perform their duties at all general, special and primary elections held in the county or any magisterial district thereof during their term of office.

(h) A vacancy shall be filled in the same manner as an original appointment, but immediate notice of a vacancy shall, where necessary, be deemed compliance with the five-day notice provision.

The bill (Eng. Com. Sub. for H. B. No. 4451), as amended, was then ordered to third reading.

On motion of Senator Unger, 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.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4451) was then read a third time and put upon its passage.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4451) passed with its title.

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

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

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk:

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

That the Code of West Virginia, 1931, as amended, be amended

by adding thereto a new section, designated §33-6F-2, to read as follows:

ARTICLE 6F. DISCLOSURE OF NONPUBLIC PERSONAL INFORMATION.

§33-6F-2. Disclosure of certain insurance information required.

Notwithstanding the provisions of section one, article six-f, of this chapter:

(a) Each insurer that may provide personal lines liability insurance coverage as that term is defined in section nine, article twelve of this chapter to pay all or a portion of a claim asserted against an insurance policy insuring a motor vehicle shall provide, within thirty days of its receipt of a written request from a claimant’s attorney who has given written notice that he or she represents the claimant: (1) A response providing the following information relating to each of the insurer’s known policies of insurance, including excess or umbrella insurance, which does or may provide liability coverage for the claim:

(A) The name of the insurer;

(B) The name of each named insured of the subject policy; and

(C) The limits of any motor vehicle liability insurance policy at the time of the events that are the subject of the claim; or

(2) The declarations page of any motor vehicle liability policy applicable at the time of the events that are the subject of the claim, appropriately redacted to comply with applicable privacy laws or regulations;

(b) Any written request by the claimant’s attorney under this section must include: (1) The date and location of the events that are the subject of the claim; (2) the name and, if known, the last known address of the insured; (3) a copy of the accident or incident report, if any; (4) the insurer’s claim number;(5) a good faith estimate and documentation of all of the claimant’s medical expenses if any and any wage loss documentation as of the date of the request, if any; and (6) documentation as of the date of the request of any and all property damage.

(c) Disclosure of the information required by subsection (a) of this section shall not constitute an admission that the alleged injury or damage is subject to the policy, nor shall such disclosure waive any reservation of rights an insurer may have.

(d) No information disclosed by any party pursuant to this section shall be, by reason of such disclosure, admissible as evidence at trial.

(e) An insurer’s compliance with this section does not constitute a violation of this article, or subsection twelve, section four, article six of this chapter.

(f) An insurer that fails to comply with this section is subject to a penalty of five hundred dollars, plus reasonable attorneys’ fees and expenses incurred in obtaining disclosure of the information required by subsection (a) of this section. This penalty is the sole and exclusive remedy for an insurer’s failure to comply with this section.

On motion of Senator Palumbo, the following amendment to the Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B. No. 4486) was reported by the Clerk and adopted:

On page two, section two, subdivision (e), by striking out the words “section four” and inserting in lieu thereof the words “section eleven”.

The question now being on the adoption of the Judiciary committee amendment to the bill, as amended, the same was put and prevailed.

The bill (Eng. Com. Sub. for H. B. No. 4486), as amended, was then ordered to third reading.

Eng. Com. Sub. for House Bill No. 4511, Creating the Shale Research, Education, Policy and Economic Development Center at West Virginia University.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on Finance, was reported by the Clerk and adopted:

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

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §18B-11C-1, §18B-11C-2 and §18B-11C-3; that said code be amended by adding thereto a new article, designated §18B-11D-1, §18B-11D-2, §18B-11D-3, §18B-11D-4, §18B-11D-5 and §18B-11D-6, all to read as follows:

ARTICLE 11C. COLLEGE AND UNIVERSITY CENTERS AND INSTITUTES.

§18B-11C-1. Findings and purposes; legislative intent.

(a) The Legislature finds that it is in the best interests of the citizens of West Virginia for state institutions of higher education to function within the bounds of the state-established accountability system pursuant to article one-d of this chapter and to focus their research efforts diligently on achieving the goals and objectives set forth therein and in their institutional compacts developed pursuant to section seven, article one-d of this chapter.

(b) The intent of the Legislature in enacting this article is to ensure that state institutions of higher education work toward furthering the goals of accountability, effectiveness and efficiency articulated in the public policy agenda and state accountability system; to avoid unnecessary duplication of program development and delivery; to ensure that programs and services are closely aligned with the mission and approved compact of the institution; and to address the public policy agenda established pursuant to section one of this article.

§18B-11C-2. Definition; creation of centers; commission approval required; criteria.

(a) For the purposes of this article and article eleven-d of this chapter, “center” means an entity or program, created by a state institution of higher education with a distinct mission in a specific area of research and includes “research centers”, “research institutes” and “centers of excellence”. A center consists of an academic team whose stated purposes are to promote collaboration and best practices in the targeted research area, to further new developments and innovative ways of working and to achieve high quality research results.

(b) Beginning with the effective date of this article, the governing board of a state institution of higher education under the jurisdiction of the commission may not create a college or university center as defined in subsection (a) of this section, regardless of the title by which the center is designated, until it first has met the criteria set forth in this section.

(c) Before a governing board of a state institution of higher education creates a new center, it must evaluate and approve the following:

(1) Center name and governance structure --

(A) The name of the proposed center and an outline showing how the center will be governed and operate;

(B) The name of the director or names of co-directors and the process by which these individuals will be appointed; and

(2) Center mission and goals --

(A) The mission of the center showing how it differs in focus and scope from all other centers established at the institution;

(B) The need for the new center with supporting documentation drawn from the institutional compact, mission statement, and public policy agenda;

(C) Demonstration of how the center will contribute in unique ways to expanding knowledge, generating new discoveries, and providing positive societal impacts; and

(D) An explanation of why a new center is required to complete the planned research activities, including a description of strengths that establishing a center may bring to the institution and the state of West Virginia.

(3) Staff and resources --

(A) The faculty, resources, facilities, and peripherals that constitute the center and the resources that will be dedicated to support of the center and its mission;

(B) Existence of a critical mass in the specific or interdisciplinary area of research, including interdisciplinary research activities that provide evidence of the potential for collaboration of researchers within the center;

(C) The researchers, academic rank, department and expected contribution to the center to be made by each member, including strengths that the researchers bring to the center and a brief academic biography of each researcher;

(D) A record of past funding and the potential for attracting external funding, including sources of potential funding to further the goals of the center and make it self-supporting;

(E) Resources that have been secured from external sources and a rationale for resources requested from the state; and

(F) Documentation showing how the center’s distinct mission and organization eliminate unnecessary competition for resources, students and faculty within the state; drive economic development; generate talent; and create an energized, entrepreneurial environment that retains top quality graduates.

§18B-11C-3. Process for commission approval; rules required.

(a) The commission shall promulgate a rule pursuant to article three-a, chapter twenty-nine-a of this code setting forth the approval process for proposed centers at state institutions of higher education. The rule shall incorporate and apply the criteria established by this article.

(b) The commission shall review each proposal received from a governing board and shall notify the governing board in writing of its decision within sixty days of the date the commission received the proposal. If the proposal is rejected, the commission shall include particulars of the deficiencies found in the proposal and shall outline steps the governing board may take to correct the deficiencies before resubmitting the proposal.

ARTICLE 11D. SHALE RESEARCH, EDUCATION, POLICY AND ECONOMIC DEVELOPMENT CENTER AT WEST VIRGINIA UNIVERSITY.

§18B-11D-1. Legislative findings.

(a) The Legislature finds that advancements in technology have made possible the efficient development of abundant natural gas and oil resources contained in underground shales and other geologic formations in the State of West Virginia. These resources have the potential to generate jobs, stimulate economic activity, ensure energy security, reduce carbon and other emissions and provide significant revenues to the state.

(b) The Legislature further finds that creation of a research, education, policy and economic development entity at West Virginia University for the purpose of pursuing independent, objective, research-driven analysis that can improve the effective and efficient development of shale resources is in furtherance of the university's land grant status. Creation of this entity will allow West Virginia to focus on the prudent development and regulation of natural gas and liquid hydrocarbon from the shale resources in the state and throughout the world.

§18B-11D-2. Creation of the Shale Research, Education, Policy and Economic Development Center at West Virginia University; purposes.

(a) In view of the findings set forth in section one of this article, there is hereby created a research, education, policy and economic development entity known as the Shale Research, Education, Policy and Economic Development Center at West Virginia University. This center meets the criteria for creation of new centers in section two, article eleven-c of this chapter and, therefore, is not subject to the approval process established by article eleven-c of this chapter.

(b) The purposes for which the center are established include, but are not limited to, the following:

(1) Providing an opportunity for West Virginia University to partner with industry and government bodies in the state, the nation and around the world to explore opportunities and engage in scientific research and development of shale resources;

(2) Promoting cooperative and collaborative partnerships between research universities in the state in order to facilitate knowledge sharing that will benefit all areas of West Virginia;

(3) Generating and documenting best practices in the areas of environment, safety, business and health;

(4) Advancing environmental performance by garnering industry and regulatory commitment;

(5) Improving data and process transparency and developing effective outreach and engagement of affected communities;

(6) Protecting the environment of West Virginia and surrounding states by minimizing methane, carbon dioxide and any other potential emissions;

(7) Structuring legal frameworks and developing rules to promote prudent development of and access to the state's resources.

(8) Developing and maintaining a flexible structure to accommodate the needs of the state and of West Virginia University together with its partners in education, government and industry. This flexible structure can be achieved by encouraging the following actions:

(A) Investment by state and federal sources in strategic research;

(B) Initiation of research and development programs that are focused and co-funded by West Virginia University and its government and industry partners;

(D) Provision of specialized services for government and industry partners.

(c) West Virginia University shall use its research capabilities in support of the center, including, but not limited to, the following:

(1) Technologies for efficient resource assessment and efficient extraction. These include various improvements to extraction technologies, earth imaging and other technologies to map, evaluate and assess resources and to understand geoprocesses;

(2) Models to predict and manipulate multiphase fluid flow including gas, liquid hydrocarbons and hydraulic fracture fluids; and water life cycle analysis from source through staging, use, wastewater recycling and treatment.

(3) Environmental and economic impacts, such as fuel cycle analysis and construction of state-wide baselines for water and air quality, control of emissions and fuel waste in all cycles of energy production and delivery;

(4) Policy analysis to facilitate cost effective permitting, industry management, regulation and acceptance; and improved gathering, storage, transmission, processing, analysis, transparency and access of energy data to serve government, industry, and the public.

(5) Human dimensions, such as workforce development, in cooperation with public education and state institutions of higher education in programs specializing in energy and environment fields; analysis of public health risks and promotion of best practices to protect public health and work place health and safety;

(6) Effective communication strategies to establish shared understandings of expectations and awareness of issues and facts and to assist state agencies in developing a transparent, efficient and effective environment to manage the oil and natural gas resources for the benefit of all the state's citizens. These agencies include the West Virginia Department of Environmental Protection, West Virginia State Tax Division, and the West Virginia Geologic and Economic Survey. The purposes of the communication strategies are to ensure that capital investment is attracted to our State and development of these resources is tracked accurately, that appropriate revenue streams are captured by the state and that royalties to mineral lessors are protected appropriately;

(7) Development of best business practices to assist in creating and maintaining a robust, profitable, and prudently positioned industry in the state; and

(8) Tracking and analyzing the economic benefit, impact and effect of the industry upon the state.

§18B-11D-3. Funding.

(a) Funding for the center is provided by legislative appropriation and through support received from private industry, federal and international sources.

(b) Nothing in this article requires an appropriation, nor any specific level of appropriation, by the Legislature.

§18B-11D-4. Powers and duties of the board of governors and the Shale Research, Education, Policy and Economic Development Center at West Virginia University.

(a) West Virginia University Board of Governors -- The board is authorized to operate the center to further the purposes set forth in this article. Powers and duties include, but are not limited to, the following:

(1) Acquisition by purchase, lease, gift or otherwise, of necessary lands, and the construction of necessary buildings and appropriate industrial operations equipment;

(2) Expansion, remodeling, altering or equipping necessary buildings;

(3) Making contracts with any state, county or municipal agency or private entity necessary and incidental to the performance of its powers and duties under this article;

(4) Providing for equipment, expenses, compensation of personnel, operation and maintenance of any facility of an agency or institution used for the purposes of this article; and

(5) Cooperating with other state research universities, agencies of the state, county and federal governments.

(b) The Shale Research, Education, Policy and Economic Development Center at West Virginia University -- Under the supervision of the Director, appointed pursuant to section five of this article, and within the scope of the authority granted by this article and by rules duly promulgated by the board of governors pursuant to section six, article one of this chapter, the center may take all actions necessary to fulfill the established purposes including providing the research capabilities set forth in section two of this article.

§18B-11D-5. Powers and duties of the center director.

(a) Subject to rules promulgated by the board of governors pursuant to section six of this article, the President of West Virginia University shall appoint a director of the center who will serve at the will and pleasure of the President.

(b) The director has the following responsibilities:

(1) Manage the day-to-day operations of the center;

(2) Coordinate the partnerships and act as the liaison between education, industry and government bodies and other entities as appropriate to address the findings set forth in section one of this article;

(3) Develop and advocate for an annual budget for the center;

(4) Report to the board of governors annually or as requested and provide an analysis of the center’s activities together with any recommendations for improvement; and

(5) Employ adequate professional, technical, and other staff necessary to fulfill the purposes of this article.

§18B-11D-6. Rules.

(a) The board of governors shall promulgate and adopt rules pursuant to section six, article one of this chapter, for the establishment, operation, cost reimbursement, fees for services, maintenance and government control of the center established by this article.

(b) The board may promulgate rules necessary for cooperation under and compliance with any existing or future federal statutes pertaining to grants-in-aid and any other rules necessary to effectuate the purposes of this article.

The bill (Eng. Com. Sub. for H. B. No. 4511), as amended, was then ordered to third reading.

On motion of Senator Unger, 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.

The nays were: None.

Absent: K. Facemyer--1.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4511) was then read a third time and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4511) passed.

The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4511--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §18B-11C-1, §18B-11C-2 and §18B-11C-3; and to amend said code by adding thereto a new article, designated §18B-11D-1, §18B-11D-2, §18B-11D-3, §18B-11D-4, §18B-11D-5 and §18B-11D-6, all relating to higher education centers and institutes generally; setting forth legislative findings and intent; providing definitions; establishing criteria for center creation and approval; requiring certain rules; creating the Shale Research, Education, Policy and Economic Development Center at West Virginia University; setting forth legislative findings and purposes; and providing certain powers and duties of West Virginia University Board of Governors, the center and the center director.

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

The nays were: None.

Absent: K. Facemyer--1.

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. 4511) takes effect July 1, 2012.

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

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

On second reading, coming up in regular order, was read a second time.

At the request of Senator Palumbo, unanimous consent being granted, the bill was advanced to third reading with the unreported Judiciary committee amendment pending and the right for further amendments to be considered on that reading.

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

On second reading, coming up in regular order, was read a second time.

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

On page thirteen, section ten, by striking out all of subparagraph (B) and inserting in lieu thereof a new subparagraph (B), to read as follows:

(B) Five dollars to the credit of the special revenue account, hereby created, designated the “Fund for Civil Legal Services for Low Income Persons”, which shall consist of all gifts, grants, bequests, transfers, appropriations or other donations or payments which may be received and administered by the Division of Justice and Community Services from any governmental entity or unit or any person, firm, foundation, or corporation for the purposes of this section, and all interest or other return earned from investment of the fund. Expenditures from the fund shall be made by the Director of the Division of Justice and Community Services and shall be limited to grants to nonprofit agencies which provide civil legal services to low income persons made at his or her discretion. Any balance in the fund at the end of each fiscal year shall not revert to the general revenue fund but shall remain in the fund and be expended as provided by this section.

The bill (Eng. Com. Sub. for H. B. No. 4605), as amended was then ordered to third reading.

Eng. House Bill No. 4634, Removing the requirement for the Legislative Auditor to conduct certain fiscal audits of the Alcohol Beverage Control Commission and the Children's Trust Fund.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

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

That §49-6C-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §60-2-21 of said code be amended and reenacted, all to read as follows:

CHAPTER 49. WEST VIRGINIA CHILD PROTECTIVE SERVICES ACT.

ARTICLE 6C. CHILDREN’S TRUST FUND.

§49-6C-1. Continuation and transfer of control of trust fund.

(a) The Children’s Fund, created for the sole purpose of awarding grants, loans and loan guarantees for child abuse and neglect prevention activities by enactment of chapter twenty-seven, Acts of the Legislature, 1984, as last amended and reenacted by chapter one hundred fifty-nine, Acts of the Legislature, 1999, is hereby continued and renamed the West Virginia Children’s Trust Fund: Provided, That upon the effective date of the enactment of this section during the second extraordinary session of the 2007 Legislature, the fund shall be administered by the Commissioner of the Bureau for Children and Families. Gifts, bequests or donations for this purpose, in addition to appropriations to the fund, shall be deposited in the State Treasury in a special revenue account under the control of the Secretary of the Department of Health and Human Resources or his or her designee.

(b) Each state taxpayer may voluntarily contribute a portion of the taxpayer's state income tax refund to the Children’s Trust Fund by designating the contribution on the state personal income tax return form. The bureau shall approve the wording of the designation on the income tax return form. The State Tax Commissioner shall determine by July 1, of each year the total amount designated pursuant to this subsection and shall report that amount to the State Treasurer, who shall credit that amount to the Children's Trust Fund.

(c) All interest accruing from investment of moneys in the Children's Trust Fund shall be credited to the fund. The Legislative Auditor shall conduct an audit of the fund before July 1, 2008, and at least every three fiscal years thereafter at least every five fiscal years.

(d) Grants, loans and loan guarantees may be awarded from the Children's Trust Fund by the Commissioner of the Bureau for Children and Families for child abuse and neglect prevention activities.

(e) Upon the effective date of the enactment of this section, all employees, records, responsibilities, obligations, assets and property, of whatever kind and character, of the Governor’s Cabinet on Children and Families are hereby transferred to the Bureau for Children and Families within the Department of Health and Human Resources, including, but not limited to, all rights and obligations held by the Governor’s Cabinet on Children and Families under any grants, loans or loan guarantees previously awarded from the Children’s Trust Fund.

(f) All orders, determinations, rules, permits, grants, contracts, certificates, licenses, waivers, bonds, authorizations and privileges which have been issued, made, granted or allowed to become effective by the Governor, by any state department or agency or official thereof, or by a court of competent jurisdiction, in the performance of functions which have been transferred to the Bureau for Children and Families within the Department of Health and Human Resources, and were in effect on the date the transfer occurred continue in effect, for the benefit of the department, according to their terms until modified, terminated, superseded, set aside or revoked in accordance with the law by the Governor, the Secretary of the Department of Health and Human Resources or other authorized official, a court of competent jurisdiction or by operation of law.

CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.

ARTICLE 2. ALCOHOLIC BEVERAGE CONTROL COMMISSIONER.

§60-2-21. Audit.

Before July 1, 2001 and at least every two fiscal years thereafter At least every five fiscal years, the Legislative Auditor shall audit the affairs of the West Virginia Alcohol Beverage Control Commissioner and report the results of the audit to the Governor. The cost of the audit shall be paid from the operating fund.

The bill (Eng. H. B. No. 4634), as amended, was then ordered to third reading.

On motion of Senator Unger, 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.

The nays were: None.

Absent: K. Facemyer--1.

Having been engrossed, the bill (Eng. H. B. No. 4634) was then read a third time and put upon its passage.

On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--32.

The nays were: D. Facemire--1.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4634) passed.

The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:

Eng. House Bill No. 4634--A Bill to amend and reenact §49-6C-1 of the Code of West Virginia, 1931, as amended; and to amend and reenact §60-2-21 of said code, all relating to fiscal audits conducted by the Legislative Auditor of the Alcohol Beverage Control Commission and the Children’s Trust Fund; increasing audits of the Alcohol Beverage Control Commission from two fiscal years to fiscal five years; and increasing audits of the Children’s Trust Fund from three fiscal years to five fiscal years.

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

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

On second reading, coming up in regular order, was read a second time and ordered to third reading.

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

On second reading, coming up in regular order, was read a second time and ordered to third reading.

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

On second reading, coming up in regular order, was read a second time and ordered to third reading.

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

On second reading, coming up in regular order, was read a second time and ordered to third reading.

The end of today's second reading calendar having been reached, the Senate returned to the consideration of

Eng. Com. Sub. for House Bill No. 4396, West Virginia Fire, EMS and Law-Enforcement Officer Survivor Benefit Act.

On second reading, coming up in deferred order, was read a second time.

The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

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

That §5H-1-1, §5H-1-2 and §5H-1-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 1. WEST VIRGINIA FIRE, EMS AND LAW-ENFORCEMENT OFFICER SURVIVOR BENEFIT ACT.

§5H-1-1. Title and legislative intent.

(a) This article is known as the “West Virginia Fire, and EMS and Law-Enforcement Officer Survivor Benefit Act.”

(b) It is the intent of the Legislature to provide for the payment of death benefits to the surviving spouse, designated beneficiary, children or parents of firefighters, and EMS and law-enforcement personnel killed in the performance of their duties.

§5H-1-2. Death benefit for survivors.

(a) In the event a firefighter, or EMS or law-enforcement provider is killed in the performance of his or her duties, the department chief, within thirty days from the date of death shall submit certification of the death to the Governor’s office.

(b) This act includes both paid and volunteer fire, and EMS and law-enforcement personnel acting in the performance of his or her duties of any fire, or EMS or law-enforcement department certified by the State of West Virginia.

(c) A firefighter, or EMS or law-enforcement provider is considered to be acting in the performance of his or her duties for the purposes of this act when he or she is participating in any role of a fire, or EMS or law-enforcement department function. This includes training, administration meetings, fire, or EMS or law-enforcement incidents, service calls, apparatus, equipment or station maintenance, fundraisers and travel to or from such functions.

(d) Travel includes riding upon or in any apparatus or vehicle which is owned or used by the fire, or EMS or law-enforcement department, or any other vehicle going to or directly returning from a firefighter’s home, place of business or other place where he or she shall have been prior to participating in a fire, or EMS or law-enforcement department function or upon the authorization of the chief of the department, agency head or other person in charge.

(e) Certification shall include the name of the certified fire, or EMS or law-enforcement program, the name of the deceased firefighter, or EMS or law-enforcement provider, the name and address of the beneficiary, any documentation designating a beneficiary or beneficiaries and setting forth the circumstances that qualify the deceased individual for death benefits under this act. Upon receipt of the certification from the certified fire, or EMS or law-enforcement program, the state shall, from moneys from the State Treasury, General Fund, pay to the certified fire, or EMS or law-enforcement program the sum of $50,000 in the name of the beneficiary of the death benefit. Within five days of receipt of this sum from the state, the fire, or EMS or law-enforcement program certified by the state shall pay the sum as a benefit to the surviving spouse, or designated beneficiary. If there is no designated beneficiary or surviving spouse or designated beneficiary, to then the minor children of the firefighter, or EMS or law-enforcement provider killed in the performance of duty. When no spouse, designated beneficiary, or minor children survive, the benefit shall be paid to the parent or parents of the firefighter, or EMS or law-enforcement provider. It is the responsibility of the certified fire or EMS program to document the surviving spouse or beneficiary for purposes of reporting to the Governor’s office.

(f) Any death ruled by a physician to be a result of an injury sustained during any of the above mentioned performance of fire department, EMS or law-enforcement duties will be eligible for this benefit, even if this death occurs at a later time.

(g) Those individuals who are both firefighters and EMS personnel covered by this article are eligible for only one death benefit payment.

(h) Every department or agency head employing persons to which this article applies shall provide notice of the benefit provided hereby to such employees and encourage covered employees to provide a written designation of beneficiary to be maintained in the employee’s personnel file.

§5H-1-3. Effective date.

The effective date for this act is January 1, 2007. The operation of the amendments to this article enacted during the year 2012 shall be effective retroactively to January 1, 2012.

The bill (Eng. Com. Sub. for H. B. No. 4396), as amended, was then ordered to third reading.

On motion of Senator Unger, 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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--32.

The nays were: None.

Absent: K. Facemyer and Stollings--2.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4396) was then read a third time and put upon its passage.

On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--32.

The nays were: None.

Absent: K. Facemyer and Stollings--2.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4396) passed.

The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4396--A Bill to amend and reenact §5H-1-1, §5H-1-2 and §5H-1-3 of the Code of West Virginia, 1931, as amended, all relating to authorizing a death benefit to the surviving spouse or designated beneficiary or contingent beneficiaries of law-enforcement officers who die in the performance their duties; requiring agencies to notify employees of the possible benefit; encouraging departments to obtain and preserve written designations of beneficiaries; clarifying order of beneficiaries; and establishing an effective date of January 1, 2012.

Senator Unger moved that the bill take effect from passage.

On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--32.

The nays were: None.

Absent: K. Facemyer and Stollings--2.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4396) takes effect from passage.

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

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

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

Eng. Com. Sub. for Senate Bill No. 371, Providing school system under declared state of emergency participate as innovation zone pilot project.

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

Delegates Perry, Caputo and Rowan.

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

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

Senators Plymale, Wells and Barnes.

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

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

Pending announcement of a meeting of the Committee on Rules,

On motion of Senator Unger, the Senate adjourned until tomorrow, Saturday, March 10, 2012, at 11 a.m.

____________