WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
EIGHTY-THIRD LEGISLATURE
REGULAR SESSION, 2017
____________
Charleston, West Virginia, Wednesday, March 29, 2017
The Senate met at
(Senator Carmichael, Mr. President, in the
Chair.)
Prayer was offered by
The Senate was then led in recitation of the Pledge of Allegiance by the
Honorable
Pending the reading of the Journal of Tuesday, March 28, 2017,
At the request of Senator
The Senate proceeded to the second order of business and the introduction
of guests.
At the request of Senator Ferns, and by unanimous consent, the Senate
proceeded to the eighth order of business.
Eng. Com. Sub. for Com. Sub.
for Senate Bill 38, Creating
5-year tax credit for new businesses locating on post-mine sites.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
Pending discussion,
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?33.
The nays were: None.
Absent: Mann?1.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
40, Requiring inclusion of
protocols for response to after-school emergencies in school crisis response
plans.
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: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Senator
On this question, the yeas were: Azinger, Beach, Blair, Boley, Boso,
Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (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.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
57, Continuing personal
income tax adjustment for certain retirees.
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: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
238, Increasing tax credits
allowed for rehabilitation of certified historic structures.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
Pending discussion,
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate
Eng. Com. Sub. for Com. Sub.
for Senate Bill 281, Increasing
number of limited video lottery machines allowed at retail location.
On third reading, coming up in regular order, was reported by the Clerk.
On motion of Senator Ferns, the bill was committed to the Committee on
Rules.
Eng. Senate Bill 282, Directing Office of Administrative Hearings
to amend current legislative rule relating to appeal procedures.
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: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Senator
On this question, the yeas were: Azinger, Beach, Blair, Boley, Boso,
Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (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.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
286, Relating to
grandparents? visitation rights.
On third reading, coming up in regular order, was read a third time.
Pending discussion,
At the request of Senator
At the request of Senator Romano, unanimous consent being granted, the
Senate returned to the second order of business and the introduction of guests.
The Senate again proceeded to the eighth order of business, the next
bill coming up in numerical sequence being
Eng. Senate Bill 293, Providing increase in annual salary of
employees in Division of Corrections.
??????????? On third reading, coming up in
regular order, was reported by the Clerk.
??????????? On motion of Senator Ferns, the bill
was committed to the Committee on Rules.
Eng. Senate Bill 294, Relating to Community Sustainability
Investment Pilot Program.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
Pending discussion,
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Com. Sub.
for Senate Bill 333, Requiring
all DHHR-licensed facilities access WV Controlled Substances Monitoring Program
Database.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
Pending discussion,
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Com. Sub.
for Senate Bill 343, Relating
to transportation network companies.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
On the passage of the bill, the yeas were: Beach, Blair, Boley, Boso,
Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel and
Carmichael (Mr. President)?32.
The nays were: Azinger and Rucker?2.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
369, Permitting surface
owners purchase mineral interests when interest becomes tax lien.
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: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel and
Carmichael (Mr. President)?33.
The nays were: Rucker?1.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
The following amendment to the title of the bill, from the Committee on
Eng. Com. Sub. for Senate Bill
369?A Bill to amend and reenact ?11A-3-19, ?11A-3-21, ?11A-3-52, ?11A-3-54 and
?11A-3-56 of the Code of West Virginia, 1931, as amended; and to amend said
code by adding thereto four new sections, designated ?11A-3-23a, ?11A-3-23b,
?11A-3-58a and ?11A-3-58b, all relating to the sale of delinquent surface and
mineral properties generally; providing that a purchaser shall provide certain
information to the State Auditor in order to secure a deed for the real estate
subject to a tax lien purchased; providing that no deed to a bona fide
purchaser for value from the purchaser or substituted purchaser may be set
aside for purchaser?s failure to provide such information; providing additional
instructive language to be included in the notice to redeem; providing that the
surface owner of the surface tract overlying the mineral property subject to
the tax lien being sold may purchase that mineral property under certain
circumstances; providing that, upon payment by the surface owner, the clerk or
deputy commission, whichever applicable, shall issue a certificate of
substitution to the substituted surface owner; providing that the clerk or
deputy commission, whichever applicable, shall refund the money paid by the
surface owner if the property is redeemed by the mineral owner or a person with
a right to redeem; providing that the surface owner enjoys the full rights and
duties of the purchaser if the owner or a person with a right to redeem does
not redeem and only one surface owner receives a certificate of substitution;
providing that surface owners shall submit an agreement dividing the mineral
property if more than one surface owners pays the clerk or deputy commission,
whichever applicable, the appropriate amount; providing that the original
purchaser is returned to his or her original position if no agreement is filed;
providing that the mineral owner of the mineral tract underlying the surface
property subject to the tax lien being sold may purchase that surface property
under certain circumstances; providing that, upon payment by the mineral owner,
the clerk or deputy commission, whichever applicable, shall issue a certificate
of substitution to the substituted mineral owner; providing that the clerk or
deputy commission, whichever applicable, shall refund the money paid by the
mineral owner if the property is redeemed by the surface owner or a person with
a right to redeem; providing that the mineral owner enjoys the full rights and
duties of the purchaser if the owner or a person with a right to redeem does
not redeem and only one mineral owner receives a certificate of substitution;
providing that mineral owners shall submit an agreement dividing the surface
property if more than one mineral owners pays the clerk or deputy commission,
whichever applicable, the appropriate amount; and providing that the original
purchaser is returned to his or her original position if no agreement is filed.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
375, Relating to rate and
measure of severance taxes on certain natural resources.
On third reading, coming up in regular order, was reported by the Clerk.
At the request of Senator
Com. Sub. for Senate Bill 386,
Creating WV Medical
Cannabis Act.
On third reading, coming up in regular order, with the unreported
Judiciary committee amendment pending and with the right having been granted on
yesterday, Tuesday, March 28, 2017, for amendments to be received on third
reading, was reported by the Clerk.
Following points of inquiry to the President, with resultant responses
thereto,
At the request of Senator
Eng. Com. Sub. for Com. Sub.
for Senate Bill 399, Prohibiting
political subdivisions from enacting local ordinances regulating benefits
employers provide to employees.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
Pending discussion,
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Azinger, Blair, Boley, Boso,
Clements, Cline, Ferns, Gaunch, Hall, Karnes, Mann, Maroney, Maynard, Mullins,
Rucker, Smith, Swope, Sypolt, Takubo, Trump, Weld and Carmichael (Mr.
President)?22.
The nays were: Beach, Facemire, Jeffries, Miller, Ojeda, Palumbo,
Plymale, Prezioso, Romano, Stollings, Unger and Woelfel?12.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
402, Relating to covenants
not to compete between physicians and hospitals.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
Pending discussion,
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Gaunch, Jeffries, Karnes, Mann, Maroney,
Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano, Rucker,
Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Woelfel and Carmichael
(Mr. President)?31.
The nays were: Ferns, Hall and Weld?3.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
406, Relating to generic
drug products.
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: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Senator
On this question, the yeas were: Azinger, Beach, Blair, Boley, Boso,
Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (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.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Com. Sub.
for Senate Bill 409, Relating
generally to 2017 Tax Reform Act.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
Pending extended discussion,
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Azinger, Blair, Boley, Boso, Clements,
Cline, Ferns, Gaunch, Hall, Karnes, Mann, Maroney, Maynard, Mullins, Ojeda,
Smith, Swope, Sypolt, Takubo, Trump, Weld and Carmichael (Mr. President)?22.
The nays were: Beach, Facemire, Jeffries, Miller, Palumbo, Plymale,
Prezioso, Romano, Rucker, Stollings, Unger and Woelfel?12.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
On motion of Senator
Eng. Com. Sub. for Com. Sub. for
Senate Bill 409?A Bill to
amend the Code of West Virginia, 1931, as amended, by repealing ?11-8-6e; to
amend said code by amending and reenacting ?11-8-6f; to amend said code by
repealing ?11-8-6g; to amend said code by adding thereto a new section,
designated ?11-13A-26; to amend said code by adding thereto new sections,
designated ?11-13DD-1, ?11-13DD-2, ?11-13DD-3 and ?11-13DD-4; to amend said
code by amending and reenacting ?11-15-3, ?11-15-3a, ?11-15-8, ?11-15-9,
?11-15A-2; to amend said code by adding thereto a new section, designated
?11-21-4g; all relating generally to the 2017 Tax Reform Act; to the repeal of
certain procedures relating to increased tax assessments; to the prospective
reduction of the rate of the severance tax on certain production of coal; to
providing a refundable credit based on the fixed income of low-income senior
citizens; to the increase of the rate of the consumers sales and service tax;
to the elimination of certain exemptions from the consumers sales and service
tax; to the increase of the rate of the use tax; to the reduction of the rate
of the personal income tax and establishing effective dates with respect
thereto.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Thereafter, at the request of Senator
At the request of Senator Boley, and by unanimous consent, the Senate
returned to the second order of business and the introduction of guests.
The Senate then proceeded to the sixth order of business.
Senate Concurrent
Resolution 49?R
Whereas, Ralph Eugen Maddox was born
October 23, 1922; and
Whereas, Ralph Maddox won his first
Horseshoe Pitching Virginia State Championship in
1934 at the age of twelve years. He is the youngest player to win a
state championship ever; and
Whereas, Ralph Maddox was hired at
Union Carbide because of his superior fast-pitching
softball arm. He, however, pursued his horseshoe career; and
Whereas, Ralph Maddox went on to win 36
state championships and was a member of
the Horseshoe Pitchers Association for 69 years. Ralph qualified for
the Men?s World Tournament Championship Class 21 times, winning 411 games and a
career average of 77.57 % ringers. His high finish was in 1961, he placed 3rd
on a 30-5 record and an 80.9 % ringers average. Ralph was one of the 13 famed
80% pitchers in the 1964 World Tournament, placed 9th on 25-10
record while pitching 83.5% ringers; and
Whereas, Sadly, Ralph Maddox passed
away on November 13, 2007 following a lengthy
illness; and
Whereas, Ralph Maddox having won
numerous state and world tournament championships, was inducted into the
Horseshoe Hall of Fame in April 1980 and was known as
?Mr. Horseshoe?; and
Whereas, lt is most fitting that the
West Virginia Legislature pay tribute to the accomplishments of Ralph Maddox;
therefore, be it
Resolved
by the Legislature of West Virginia:
That the Division of Highways is hereby
requested to erect a sign along each side of US Route 60 at the St. Albans
bridge near Amandaville, in Kanawha County proclaiming, ?Home of Ralph Maddox -
1980 NHSPA Hall of Fame Inductee?; and, be it
Further
Resolved, that the
Clerk of the Senate is hereby directed to forward a copy of this resolution to
the Commissioner of the Division of Highways.
Which, under the rules, lies over one day.
Senators Smith, Sypolt, Stollings, Plymale, Boso and Unger
offered the following resolution:
Senate
Resolution 59?D
Whereas, In the winter of
1949-1950, two members of the Ski Club of Washington, D. C., discovered a
substantial snow drift when most of the region was bare; and
Whereas, In February of 1951,
the two members returned to ski the drift and skiing in Tucker County was born;
and
Whereas, Today, Tucker
County is home to two downhill ski areas and one Cross Country Ski Center and
endless winter activities for all ages and has established itself as a winter
destination; and
Whereas, Tucker County is
home to three West Virginia state parks, namely Canaan Valley Resort State
Park, Blackwater Falls State Park, and Fairfax Stone State Park, and
Monongahela National Forest; and
Whereas, Tucker County enjoys
a location within a few hours? drive of most of the population in the eastern
United States; and
Whereas, Tucker County is
not only a year round outdoor recreation destination, but is now emerging as an
art and culture destination; and
Whereas, Tucker County is
home to three breweries, the only Cultural District Authority in West Virginia,
the Potomac Stone, the newly installed paragliding site at Canaan Valley
Resort, the Splash Park in Parsons and soon to be Tucker County Boulder Park;
and
Whereas, On the occasion of
Tucker County Day at the Legislature, we hereby recognize Tucker County and its
citizens for their contributions to the great State of West Virginia;
therefore, be it
Resolved by the
That the Senate hereby
designates March 29, 2017, as Tucker County Day at the Legislature; and, be it
Further Resolved, That the Senate extends its sincere gratitude and
appreciation to the many important contributions the citizens and businesses of
Tucker County make in the State of West Virginia; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of
this resolution to the appropriate representatives from Tucker County.
At the request of Senator
Thereafter, at the request of Senator
On motion of Senator Ferns, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and resumed
business under the sixth order.
Senate
Resolution 60?R
Whereas, The Cabell Midland
High School Band program has, since its inception in 1994, provided exceptional
musical performances; and
Whereas, The band has won
87 Marching Band Grand Championships and 6 Marshall University Tri-State
Marching Band Championships; and
Whereas, Its concert bands
have earned superior ratings for 22 straight years; and
Whereas, The Cabell Midland
High School Jazz Band has twice been named the Marshall University Jazz
Festival Honor Band and won a national first place award at the All-American
Festival in Orlando; and
Whereas, The band has
excelled in-state as the featured band for 11 years at the Joyful Night Program
at the State Capitol and is an 8-time winner of the West Virginia Black Walnut
Festival Honor Band award; and
Whereas, The band has excelled
internationally at the Toronto Music Festival and performed in Canada, the
Bahamas, Mexico, and Belize; and
Whereas, The Cabell Midland
Marching Knights have been named the West Virginia State Marching Band
Invitational State Honor Band for five consecutive years and are the current
reigning champions; therefore, be it
Resolved by the
That the Senate hereby
recognizes the Cabell Midland High School Band for its exceptional
accomplishments, dedication and for proudly representing the school, county and
state with their talent and fine performances; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of
this resolution to the Cabell Midland High School Band.
At the request of Senator
Thereafter, at the request of Senator
On motion of Senator Ferns, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and resumed
business under the sixth order.
Senate
Resolution 61
Whereas, The VH1 Save The
Music Foundation program that places musical instrument in West Virginia public
middle schools has increased participation in middle and high school bands; and
Whereas, public high
schools of all sizes are enjoying a resurgence in band participation; and
Whereas, Until 2012, there
was no statewide marching band championship open to all West Virginia secondary
schools; and
Whereas, In that year the
West Virginia Division of Culture and History hosted the first West Virginia
Marching Band Invitational at Glenville State College; and
Whereas, There were 19
bands in the first competition which has grown to see as many as 37 bands
participating at the University of Charleston?s Laidley Field; and
Whereas, The invitational
may include as many as 2,400 students and 7,000 spectators who enjoy the day in
Charleston; and
Whereas, This invitational
provides a showcase for the state?s high school marching bands; and
Whereas, The students have
the opportunity to see the WVU Pride of West Virginia perform; and
Whereas, This event
highlights the value of arts education to encourage creativity, talent and
self-discipline; therefore, be it
Resolved by the
That the Senate hereby
declares the West Virginia Marching Band Invitational to be the state?s
official Marching Band Championship event; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of
this resolution to the appropriate officials with the West Virginia Marching
Band Invitational.
At the request of Senator
On motion of Senator Ferns, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and, at the request
of Senator Maynard, and by unanimous consent, returned to the second order of
business and the introduction of guests.
The Senate again proceeded to the sixth order of business.
Petitions
Senator
Referred to the Committee on
At the request of Senator Ferns, unanimous consent being granted, the
Senate returned to the fourth order of business.
Senator
Your Committee on
Senate Concurrent Resolution
50 (originating in the
Committee on
Whereas, Marijuana is currently classified as a Schedule I drug under
the United States Controlled Substances Act; and
Whereas, Schedule I drugs are defined as drugs with no currently
accepted medical use and a high potential for abuse, placing marijuana on par
with heroin, lysergic acid, diethylamide, 3,4-methylenedioxymethamphetamine and
methaqualone and signifying that marijuana poses a greater risk for abuse than
Schedule II drugs, including cocaine, oxycodone, fentanyl and morphine; and
Whereas, The continued classification of marijuana as a Schedule I drug
is inappropriate given the growing domestic and international consensus that
marijuana has medicinal value and given marijuana?s limited potential for abuse
relative to other Schedule I and II drugs; and
Whereas, The medical use of marijuana or cannabis has been studied
outside the United States for years and has shown efficacy in treating numerous
conditions, including epilepsy, wasting syndrome, chemotherapy-induced nausea,
glaucoma, migraine headaches, and chronic pain and/or anxiety; and
Whereas, Twenty-eight states and the District of Columbia have similarly
recognized that marijuana has some medicinal value by legalizing the medical
use of marijuana. It is estimated that as many as 2.3 million patients have
been prescribed marijuana as of March 2017; and
Whereas, Numerous health organizations representing both physicians and
patients have also called upon Congress to reschedule marijuana, including the
American College of Physicians, the American Academy of Pediatrics, Americans
for Safe Access, and the Epilepsy Foundation; and
Whereas, The American Legion, our nation?s largest veterans organization
representing 2.4 million members, has also joined this growing consensus,
calling for increased research on marijuana?s potential use for treating
post-traumatic stress disorder and traumatic brain injuries in soldiers
returning home from Iraq and Afghanistan; and
Whereas, The continued classification of marijuana as a Schedule I drug
prevents the scientific and medical community from heeding the call of our
veterans, as research institutions are prohibited from examining the potential
medical uses of Schedule I drugs; and
Whereas, Marijuana?s current classification also puts states in the
unacceptable position having to choose between complying with federal law and
providing a full complement of medical treatments to their citizens; and
Whereas, In recognition of this dilemma, the Law and Criminal Justice
Committee of the National Conference of State Legislatures, which serves the
legislatures of all fifty states, called upon Congress to reschedule marijuana
and to allow states to regulate marijuana at their own discretion; and
Whereas, By rescheduling marijuana and authorizing states to set their
own marijuana policies, Congress would not only allow states to meet the
medical needs of their citizens without violating federal law, but Congress
would also liberate state governments to become centers of innovation with
respect to marijuana policy, exploring different ways to maximize public
safety, health and economic development through competing research and
regulatory regimes; and
Whereas, Authorizing states to set their own marijuana policy would also
remove the threat of federal criminal prosecution and forfeiture for
individuals and corporations that are involved in the medical use of marijuana
and that have otherwise lawfully complied with their respective state?s
regulatory regime; therefore, be it
Resolved by the Legislature of West
Virginia:
That the Legislature urges the Congress of the United States to pass
legislation to reschedule marijuana from a Schedule I drug to an alternative
schedule, thereby allowing doctors to prescribe marijuana and to allow research
institutions to experiment with marijuana?s potential medical uses; and, be it
Further Resolved, That the Legislature urges the Congress of
the United States to amend the Controlled Substances Act explicitly to allow
states to set their own marijuana policies without federal interference; and,
be it
Further Resolved, That the Legislature urges the President of
the United States to sign such legislation; and, be it
Further Resolved, That the Clerk of the Senate transmit
copies of this resolution to the President and Vice President of the United
States, to the Speaker of the House of Representatives, to the Majority Leader
of the United States Senate, and to each Senator and Representative from West
Virginia in the Congress of the United States.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
?
??? Chair.
At the request of Senator
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
Senator
Your Committee on
Eng. Com. Sub. for House Bill
2329, Prohibiting the production,
manufacture or possession of fentanyl.
And has amended same.
And reports the same back with the recommendation that it do pass, as
amended.
Respectfully submitted,
?
??? Chair.
On motion of Senator Ferns, the Senate recessed until 12:30 p.m. today.
Upon expiration of the recess, the Senate reconvened and proceeded to
the eighth order of business, the next bill coming up in numerical sequence
being
Eng. Senate Bill 416, Relating to Public-Private Transportation
Facilities Act.
On
On motion of Senator Ferns, the bill was committed to the Committee on
Rules.
Eng. Senate Bill 417, Removing financial limitations on number of
design-build projects undertaken by DOH.
On
On motion of Senator Unger, the bill was committed to the Committee on
Rules.
Eng. Senate Bill 421, Increasing amount of authorized federal
Grant Anticipation Notes for which DOH may apply.
On
On motion of Senator Ferns, the bill was committed to the Committee on
Rules.
Eng. Com. Sub. for Senate Bill
446, Authorizing Governor
issue executive orders to furlough state employees.
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: Azinger, Blair, Boley,
Clements, Cline, Facemire, Ferns, Hall, Mann, Maroney, Mullins, Ojeda, Palumbo,
Plymale, Prezioso, Stollings, Swope, Sypolt, Takubo, Trump, Weld, Woelfel and
Carmichael (Mr. President)?23.
The nays were: Beach, Boso, Gaunch, Jeffries, Karnes, Maynard, Miller,
Romano, Rucker, Smith and Unger?11.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Senator Ferns moved that Engrossed Committee Substitute for Senate Bill
446 be made effective from passage and requested unanimous consent that the
roll call used on the passage of the bill be used to make it so effective.
Which consent was not granted, Senator Unger objecting.
Thereafter, Senator Ferns moved that the bill take effect from passage.
On this question, the yeas were: Azinger, Blair, Boley, Boso, Clements,
Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Mann, Maroney, Miller, Mullins,
Ojeda, Palumbo, Plymale, Prezioso, Smith, Stollings, Swope, Sypolt, Takubo,
Trump, Weld, Woelfel and Carmichael (Mr. President)?28.
The nays were: Beach, Karnes, Maynard, Romano, Rucker and Unger?6.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in
the affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
465, Relating to medical
professional liability.
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: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Com. Sub.
for Senate Bill 469, Prohibiting
waste of game animals, birds or fish.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
Pending discussion,
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Beach, Blair, Boley, Boso,
Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel and
Carmichael (Mr. President)?32.
The nays were: Azinger and Stollings?2.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Com. Sub.
for Senate Bill 482, Relating
generally to WV Parkways Authority.
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: Azinger, Beach, Blair, Boley,
Boso, Clements, Ferns, Hall, Jeffries, Mann, Maroney, Miller, Ojeda, Palumbo,
Plymale, Prezioso, Romano, Smith, Stollings, Swope, Sypolt, Takubo, Trump,
Weld, Woelfel and Carmichael (Mr. President)?26.
The nays were: Cline, Facemire, Gaunch, Karnes, Maynard, Mullins, Rucker
and Unger?8.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Senator
On this question, the yeas were: Azinger, Beach, Blair, Boley, Boso,
Clements, Ferns, Hall, Jeffries, Mann, Maroney, Miller, Ojeda, Palumbo,
Plymale, Prezioso, Romano, Smith, Stollings, Swope, Sypolt, Takubo, Trump,
Weld, Woelfel and Carmichael (Mr. President)?26.
The nays were: Cline, Facemire, Gaunch, Karnes, Maynard, Mullins, Rucker
and Unger?8.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in
the affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
484, Relating generally to
taxation.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
On the passage of the bill, the yeas were: Beach, Blair, Boley,
Clements, Facemire, Ferns, Hall, Jeffries, Mann, Maroney, Miller, Ojeda,
Palumbo, Plymale, Prezioso, Romano, Smith, Stollings, Sypolt, Takubo, Trump,
Unger, Woelfel and Carmichael (Mr. President)?24.
The nays were: Azinger, Boso, Cline, Gaunch, Karnes, Maynard, Mullins,
Rucker, Swope and Weld?10.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Senator
On this question, the yeas were: Beach, Blair, Boley, Clements,
Facemire, Ferns, Hall, Jeffries, Mann, Maroney, Miller, Ojeda, Palumbo,
Plymale, Prezioso, Romano, Smith, Stollings, Sypolt, Takubo, Trump, Unger,
Woelfel and Carmichael (Mr. President)?24.
The nays were: Azinger, Boso, Cline, Gaunch, Karnes, Maynard, Mullins,
Rucker, Swope and Weld?10.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in
the affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
At the request of Senator Azinger, and by unanimous consent, the Senate
returned to the sixth order of business, which agenda includes the making of
main motions.
On motion of Senator Azinger, the Senate requested the return from the
House of Delegates of
Eng. Com. Sub. for Com. Sub.
for Senate Bill 482,
Relating generally to WV Parkways Authority.
Passed by the Senate in earlier proceeding today,
The bill still being in the possession of the Senate,
On motion of Senator Azinger, the Senate reconsidered the vote by which
it adopted Senator Ferns? motion that Engrossed Committee Substitute for
Committee Substitute for Senate Bill 482 take July 1, 2017.
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Ferns? motion that
the bill take effect July 1, 2017.
Thereafter, at the request of Senator Ferns, and by unanimous consent,
his foregoing motion was withdrawn.
On motion of Senator Azinger, the Senate reconsidered the vote as to the
passage of the bill.
The vote thereon having been reconsidered,
The question again being on the passage of the bill, the yeas were:
Beach, Blair, Boley, Boso, Clements, Facemire, Ferns, Hall, Jeffries, Mann,
Maroney, Miller, Ojeda, Palumbo, Plymale, Prezioso, Romano, Smith, Stollings,
Swope, Sypolt, Takubo, Trump, Weld, Woelfel and Carmichael (Mr. President)?26.
The nays were: Azinger, Cline, Gaunch, Karnes, Maynard, Mullins, Rucker
and Unger?8.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Senator
On this question, the yeas were: Beach, Blair, Boley, Boso, Clements,
Facemire, Ferns, Hall, Jeffries, Mann, Maroney, Miller, Ojeda, Palumbo,
Plymale, Prezioso, Romano, Smith, Stollings, Swope, Sypolt, Takubo, Trump,
Weld, Woelfel and Carmichael (Mr. President)?26.
The nays were: Azinger, Cline, Gaunch, Karnes, Maynard, Mullins, Rucker
and Unger?8.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in
the affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
The Senate again proceeded to the eighth order of business, the next
bill coming up in numerical sequence being
Eng. Com. Sub. for Com. Sub.
for Senate Bill 501, Relating
to WV Economic Development Authority.
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: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel and
Carmichael (Mr. President)?33.
The nays were: Rucker?1.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Senate Bill 504, Defining ?special aircraft property?.
On
On motion of Senator
Eng. Com. Sub. for Com. Sub.
for Senate Bill 507, Allowing
pharmacists inform customers about lower cost alternatives to prescribed drugs.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
Pending discussion,
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
515, Relating to parole
requirements for hearings and release.
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: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Com. Sub.
for Senate Bill 521, Relating
generally to Public Defender Services.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
Pending discussion,
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Azinger, Blair, Boley, Boso,
Clements, Cline, Ferns, Gaunch, Hall, Karnes, Mann, Maroney, Mullins, Palumbo,
Rucker, Smith, Swope, Sypolt, Takubo, Trump, Weld, Woelfel and Carmichael (Mr.
President)?23.
The nays were: Beach, Facemire, Jeffries, Maynard, Miller, Ojeda,
Plymale, Prezioso, Romano, Stollings and Unger?11.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Com. Sub.
for Senate Bill 526, Requiring
mandatory insurance coverage for inherited enzymatic disorders.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
On the passage of the bill, the yeas were: Beach, Blair, Boley, Boso,
Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?33.
The nays were: Azinger?1.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S.
B. 526) 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 Senate Bill
534, Relating to incentives
for consolidating local governments.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
On the passage of the bill, the yeas were: Beach, Blair, Boso, Clements,
Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Mann, Maroney, Miller, Mullins,
Ojeda, Palumbo, Plymale, Prezioso, Romano, Rucker, Stollings, Swope, Takubo,
Trump, Unger, Weld, Woelfel and Carmichael (Mr. President)?28.
The nays were: Azinger, Boley, Karnes, Maynard, Smith and Sypolt?6.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
549, Allowing individuals
at least 21 or older operate or ride motorcycle without helmet.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
Pending extended discussion,
Senator Plymale moved the previous question, which motion prevailed.
The previous question having been ordered, that being on the passage of
Engrossed
On the passage of the bill, the yeas were: Azinger, Blair, Boley, Boso,
Facemire, Gaunch, Jeffries, Karnes, Maynard, Romano, Rucker, Swope, Sypolt,
Trump and Carmichael (Mr. President)?15.
The nays were: Beach, Clements, Cline, Ferns, Hall, Mann, Maroney,
Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Smith, Stollings, Takubo,
Unger, Weld and Woelfel?19.
Absent: None.
So, a majority of all the members present and voting not having voted in
the affirmative, the President declared the bill (Eng.
Com. Sub. for Senate Bill 562,
Relating to civil actions
for damages brought against county commissions and municipalities.
On third reading, coming up in regular order, with the unreported
Judiciary committee amendment pending and with the right having been granted on
yesterday, Tuesday, March 28, 2017, for amendments to be received on third
reading, was reported by the Clerk.
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 ?17-10-17 of the
Code of West Virginia, 1931, as amended, be amended and reenacted to read as
follows:
ARTICLE 10. COUNTY commissions; MUNICIPALITIES; GENERAL
AUTHORITY AND DUTIES AS TO ROADS, ETC.
?17-10-17. Action for
damages occasioned by defective defect in, disrepair, maintenance of,
or failure to maintain or repair any road, bridge, street, sidewalk,
alleyway, public walkway, etc.
Any person who sustains
an injury to his person or property by reason of any road or bridge under the
control of the county court or any road, bridge, street, alley or sidewalk in
any incorporated city, town or village being out of repair due to the
negligence of the county court, incorporated city, town or village may recover
all damages sustained by him by reason of such injury in an action against the
county court, city, town or village in which such road, bridge, street, alley
or sidewalk may be, except that such city, town or village shall not be subject
to such action unless it is required by charter, general law or ordinance to
keep the road, bridge, street, alley or sidewalk therein, at the place where
such injury is sustained, in repair. If it is not so required, the action and
remedy shall be against the county court. When judgment is obtained against the
county court, such court shall at the time of the laying of the next annual
levy, levy upon the taxable property of the district in which such injury is
sustained a sufficient sum to pay such judgment with interest and costs, and
the costs of collecting the same, and when it is obtained against the city,
town or village the proper municipal authorities thereof shall lay such levies
at the time of levying the next annual levy on the property subject to taxation
in such city, town or village. In case of a failure by either so to do, or to
pay the judgment as required by law, the circuit court of the county for which
such county court acts or in which such city, town or village or the major
portion of the territory thereof is located shall compel the laying of such
levy, or the payment of such judgment, or both, by mandamus.
(a) Notwithstanding any
other provision of the code to the contrary, beginning on July 1, 2017, all claims
or actions against a county commission or municipality seeking damages for
injury to person or property for a slip, trip, fall or similar injury as a
result of any defect in, disrepair or maintenance of, or failure to maintain or
repair, any road, bridge, street, sidewalk, alleyway, stairway or other public walkway
or area used for travel, ingress or egress, that is owned, controlled or
maintained by a county commission or municipality are subject to the
requirements of this section.
(b) Any person who
sustains an injury to his or her person or property by reason of a slip, trip,
fall or similar injury as a result of any defect in, disrepair or maintenance
of, or failure to maintain or repair, any road, bridge, street, sidewalk, alleyway,
stairway or other public walkway or area used for travel, ingress or egress,
that is owned, controlled or maintained by a county commission or municipality
may recover civil damages sustained by him or her by reason of the injury in an
action against the county commission or municipality, subject to the following
limitations:
(1) The injury directly
results from and occurs while employees of the county commission or
municipality are physically present at the site performing construction,
maintenance, repair or cleaning, but excluding inspection of work being
performed, or materials being used, by others, where and when the injury is
sustained; or
(2) The injury arises
from a defect in, the disrepair or maintenance of, or the failure to maintain
or repair, any road, bridge, street, sidewalk, alleyway, stairway or other
public walkway or area used for travel, ingress or egress, due to the gross
negligence of the county commission or municipality.
(c) With regard to any
action arising under this section, the county commission or municipality owes
no duty of care to protect against, and is not liable for, dangers that are
open and obvious, reasonably apparent, or as well known to the person injured
as they are to the county commission or municipality. In its application of the
open and obvious doctrine, a court as a matter of law shall appropriately apply
the doctrine considering the nature and severity, or lack thereof, of
violations of any statute, state rule or municipal ordinance relating to a
cause of action.
(d) This section does
not diminish or limit the protections afforded to county commissions and
municipalities by other provisions of this code, including the immunities
granted by article twelve-a, chapter twenty-nine of this code.
There being no further amendments offered,
The bill, as just amended, was ordered to engrossment.
Engrossed
On the passage of the bill, the yeas were: Azinger, Blair, Boley, Boso,
Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Rucker,
Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel and
Carmichael (Mr. President)?32.
The nays were: Beach and Romano?2.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
The following amendment to the title of the bill, from the Committee on
Eng. Com. Sub. for Senate Bill
562?A Bill to amend and
reenact ?17-10-17 of the Code of West Virginia, 1931, as amended, relating to
civil actions for damages brought against county commissions and municipalities
by persons injured by reason of a slip, trip, fall or similar injury resulting
from defect, disrepair, maintenance of, or failure to maintain or repair any
road, bridge, street, sidewalk, alleyway or public walkway.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
563, Relating to Consumer
Credit and Protection Act.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
Pending discussion,
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Azinger, Blair, Boley, Boso,
Clements, Cline, Ferns, Gaunch, Hall, Karnes, Mann, Maroney, Maynard, Mullins,
Palumbo, Plymale, Rucker, Smith, Swope, Takubo, Trump, Weld, Woelfel and
Carmichael (Mr. President)?24.
The nays were: Beach, Facemire, Jeffries, Miller, Ojeda, Prezioso,
Romano, Stollings, Sypolt and Unger?10.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
On motion of Senator
Eng. Com. Sub. for Senate Bill
563?A Bill to amend and
reenact ?46A-2-105, ?46A-2-122 and ?46A-2-128 of the Code of West Virginia,
1931, as amended; to amend said code by adding thereto a new section,
designated ?46A-2-140; to amend and reenact ?46A-5-101 and ?46A-5-102 of said
code; to amend said code by adding thereto a new section, designated
?46A-5-108; and to amend and reenact ?46A-8-101 of said code, all relating to
the Consumer Credit and Protection Act; modifying requirements for contracts
allowing for balloon payments; establishing that agreements allowing for
balloon payments shall contain certain language in form and substance
substantially similar to existing requirements; modifying and clarifying
definitions; excluding attorneys from the definition of ?debt collector? under
certain circumstances; changing the time period where direct contact with a
consumer must cease after receipt of notice of representation from seventy-two
hours to three business days; clarifying form of notice to a debt collector of
a consumer ?s representation by legal counsel; requiring notice of
representation to a debt collector be sent by certified mail, return receipt
requested; requiring a debt collector to make certain disclosures in all
communications with a consumer about debt beyond the statute of limitations for
filing a legal action for collection of that debt; establishing that contents
of or omissions from a pleading do not provide the basis for a claim of a
violation of the Consumer Credit and Protection Act under certain
circumstances; establishing exceptions for when a pleading may form the basis
of a claim under the Consumer Credit Protection Act; preserving certain common
law causes of action; providing for statutes of limitation in foreclosure
matters; providing that counterclaims are subject to the appropriate statute of
limitations; adopting a right to cure under certain provisions of the Consumer
Credit Protection Act; establishing process and procedures for cure offers and
responses to cure offers; establishing remedies for cure offers and responses
to such offers; tolling the statute of limitations in certain circumstances
involving cure offers and responses; addressing admissibility into evidence of
cure offers and responses to such offers; addressing awards of attorney fees in
certain circumstances involving cure offers and responses to such offers; and
providing for applicability and effective dates of these amendments to the
Consumer Credit Protection Act.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Com. Sub. for Senate Bill 576,
Providing exception to
waste for certain oil and gas development.
On third reading, coming up in regular order, with the right having been
granted on Saturday, March 25, 2017, for amendments to be received on third
reading, was reported by the Clerk.
On motion of Senator
On page
??????????? On motion of Senator Romano, the
following amendment to the bill (Com. Sub. for S. B. 576) was next reported by
the Clerk:
On page
??????????? Following discussion,
??????????? The question being on the adoption
of Senator Romano?s amendment to the bill, the same was put and prevailed.
??????????? On motion of Senator Romano, the
following amendment to the bill (Com. Sub. for S. B. 576) was next reported by
the Clerk:
On page
??????????? Following discussion,
??????????? The question being on the adoption
of Senator Romano ?s amendment to the bill, the same was put and did not
prevail.
??????????? On motion of Senator Romano, the
following amendment to the bill (Com. Sub. for S. B. 576) was next reported by
the Clerk:
On page
(a) In determining the royalty rate where multiple contiguous leases are
developed under section five of this chapter, in the absence of specific
agreement language to the contrary, each royalty owner shall receive the
highest royalty rate contained in the multiple contiguous leases or a fifteen
percent royalty rate, whichever is greater. Nothing in this subsection is
intended to impact royalties due for wells drilled prior to the effective date
of this article.;
And,
By relettering the remaining subsections.
??????????? Following discussion,
??????????? The question being on the adoption of
Senator Romano's amendment to the bill, and on this question,
Senator Romano demanded the yeas and nays.
The roll being taken, the yeas were: Beach, Boso,
Clements, Facemire, Jeffries, Miller, Ojeda, Palumbo, Prezioso, Romano,
Stollings, Takubo, Unger and Woelfel?14.
The nays were: Azinger, Blair, Boley, Cline, Ferns,
Gaunch, Hall, Karnes, Mann, Maroney, Maynard, Mullins, Plymale, Smith, Swope,
Sypolt, Trump, Weld and Carmichael (Mr. President)?19.
Absent: Rucker?1.
So, a majority of those present and voting not
having voted in the affirmative, the President declared Senator Romano's
amendment to the bill rejected.
On motion of Senator Romano, the following
amendments to the bill (Com. Sub. for S. B. 576) were next reported by the
Clerk and considered simultaneously:
On page
On page five, section four, lines twenty-six and twenty-seven, by
striking out the words ?paragraph (A), subdivision (1) of this subsection? and
inserting in lieu thereof the words ?subsection (b) of this section?;
On page five, section four, line twenty-nine, by striking out the words
?paragraph (A), subdivision (1) of this subsection? and inserting in lieu thereof
the words ?subsection (b) of this section?;
And,
On page five, section four, after line twenty-nine, by inserting a new
subsection, designated subsection (b), to read as follows:
(b) (1) For purposes of this section, ?oil and gas conservation commission?
or ?commission? means the commission created in article nine, chapter
twenty-two-c of this code.
(2) If a nonconsenting cotenant elects, or is deemed to have elected,
for review by the oil and gas conservation commission, the nonconsenting cotenant
shall notify the operator in writing of this election within the 45-day period
set forth in subsection (a) of this section. The operator shall, within thirty
days of the receipt of the nonconsenting cotenant ?s election for review by the
commission, submit the best and final lease offer and any accompanying
documentation to the commission and deliver a copy of all filed documents to
the nonconsenting cotenant. The nonconsenting cotenant shall, within thirty
days of the receipt of the operator ?s filing to the commission, submit any
additional documentation to the commission that the nonconsenting cotenant
believes to be relevant to the determination. The commission shall set the
matter for a hearing within forty-five days of receiving the nonconsenting cotenant
?s documentation or, if no such documentation was filed, within seventy-five
days of receiving the operator ?s documentation. The commission shall provide
no less than thirty days ? notice of the hearing date to the nonconsenting
cotenant and the operator, and shall allow for rescheduling or continuance if
good cause is shown.
(3) At the hearing, all interested parties shall be permitted to present
relevant evidence to the determination. Following the hearing, the commission
shall determine what is just and reasonable consideration for the nonconsenting
cotenant to receive as consideration based on relevant evidence adduced at the hearing and
through the filed documentation including, but not limited to, amounts paid or
consideration given in arm ?s length transactions in the vicinity of the
horizontal well unit and within a reasonable time prior to the hearing for
transactions of the same nature and involving similar geologic conditions as
that transaction being considered by the commission. Under no circumstances may
the commission determine that consideration less than that contained in the
operator ?s best and final lease offer or compensation less than provided in
subdivision (1), subsection (a) of this section is just and reasonable. The
commission shall, within twenty days of the hearing,
enter an order setting forth a determination of just and reasonable
compensation for the nonconsenting cotenant.
(4) Within ten days after the commission ?s order is entered, any
interested party may file exceptions thereto, and demand that the question of
the just and reasonable compensation, be ascertained by a jury, in which case a
jury of twelve citizens shall be selected and impaneled for the purpose, as
juries are selected in civil actions. The cause shall be tried as other causes
in such court, except that any member of the oil and gas conservation
commission shall not be examined as a witness. The jury, ascertaining the just
and reasonable compensation to which the nonconsenting cotenant is entitled,
shall be governed by the limitations set forth in subdivision (3) of this
subsection. In the event a demand is made by a party in interest, and the judge
deems it reasonably necessary to fairly resolve the matter, the jury shall be
taken to view the property, and in such case, the judge presiding at the trial
shall go with the jury and shall control the proceedings. All parties have a
right to appeal from the jury ?s decision to the Supreme Court of Appeals of
West Virginia.
If no exceptions are filed to the commission ?s order, and neither party
demand a trial by jury as aforesaid, the commission ?s order is final.
??????????? Following discussion,
The question being on the adoption of
Senator Romano?s amendments to the bill, and on this question, Senator Romano
demanded the yeas and nays.
The roll being taken, the yeas were:
Beach, Facemire, Jeffries, Miller, Ojeda, Prezioso, Romano, Stollings, Unger
and Woelfel?10.
The nays were: Azinger, Blair, Boley, Boso,
Clements, Cline, Ferns, Gaunch, Hall, Karnes, Mann, Maroney, Maynard, Mullins,
Palumbo, Plymale, Smith, Swope, Sypolt, Takubo, Trump, Weld and Carmichael (Mr.
President)?23.
Absent: Rucker?1.
So, a majority of those present and
voting not having voted in the affirmative, the President declared Senator
Romano?s amendment to the bill rejected.
??????????? On motion of Senator Ferns, the
following amendments to the bill (Com. Sub. for S. B. 576) were next reported
by the Clerk, considered simultaneously, and adopted:
On page
CHAPTER
11. TAXATION.
ARTICLE
13A. SEVERANCE AND BUSINESS PRIVILEGE TAX ACT.
?11-13A-3a.
Imposition of tax on privilege of severing natural gas or oil; Tax
Commissioner to develop a uniform reporting form.
(a) Imposition of tax. ? For the privilege of engaging or continuing within this state in the business of severing natural gas or oil for sale, profit or commercial use, there is hereby levied and shall be collected from every person exercising such privilege an annual privilege tax: Provided, That effective for all taxable periods beginning on or after January 1, 2000, there is an exemption from the imposition of the tax provided in this article on the following: (1) Free natural gas provided to any surface owner; (2) natural gas produced from any well which produced an average of less than five thousand cubic feet of natural gas per day during the calendar year immediately preceding a given taxable period; (3) oil produced from any oil well which produced an average of less than one-half barrel of oil per day during the calendar year immediately preceding a given taxable period; and (4) for a maximum period of ten years, all natural gas or oil produced from any well which has not produced marketable quantities of natural gas or oil for five consecutive years immediately preceding the year in which a well is placed back into production and thereafter produces marketable quantities of natural gas or oil.
(b) Rate and measure of tax. ? (1) The tax imposed in subsection (a) of this section shall be five percent of the gross value of the natural gas or oil produced, as shown by the gross proceeds derived from the sale thereof by the producer, except as otherwise provided in this article.
(2) On and after July 1,
2017, the rate of tax on the privilege of severing natural gas for sale,
profit, or commercial use shall be:
When the annualized gross value
of natural gas per MCF is:?? ____________The rate of tax is:
Under $2.50:?????????????? ________________________??????????? 4%
At least $2.50 but less
than $4.00:???? _______????????????????????? 5%
At least $4.00 but less
than $6.00:???????????????? ______??????????? 6%
At least $6.00 but less
than $8.00:???? _______????????????????????? 7%
At least $8.00 but less
than $10.00:?? _________________? 8%
At least $10.00 and
over:?????? ??????________________________9%
(c) Tax in addition to other taxes. ? The tax
imposed by this section shall apply to all persons severing gas or oil in this
state, and shall be in addition to all other taxes imposed by law.
(d)(1) The Legislature finds that in addition to the
production reports and financial records which must be filed by oil and gas
producers with the State Tax Commissioner in order to comply with this section,
oil and gas producers are required to file other production reports with other
agencies, including, but not limited to, the office of oil and gas, the Public
Service Commission and county assessors. The reports required to be filed are
largely duplicative, the compiling of the information in different formats is
unnecessarily time consuming and costly, and the filing of one report or the
sharing of information by agencies of government would reduce the cost of
compliance for oil and gas producers.
(2) On or before July 1, 2003, the Tax Commissioner
shall design a common form that may be used for each of the reports regarding
production that are required to be filed by oil and gas producers, which form
shall readily permit a filing without financial information when such
information is unnecessary. The commissioner shall also design such forms so as
to permit filings in different formats, including, but not limited to,
electronic formats.
(3) Effective July 1, 2006, this subsection shall have
no force or effect.;
And,
By striking out the enacting section and inserting in lieu thereof a new enacting section, :
That ?11-13A-3a of the Code of West Virginia, 1931, as amended, be amended and reenacted; that ?37-7-2 of said code be amended and reenacted; and that said code be amended by adding thereto a new chapter, designated ?37B-1-1, ?37B-1-2, ?37B-1-3, ?37B-1-4, ?37B-1-5, ?37B-1-6, ?37B-1-7, ?37B-1-8, ?37B-1-9 and ?37B-1-10, all to read as follows:.
??????????? On motion of Senator Clements, the
following amendment to the bill (Com. Sub. for S. B. 576) was next reported by
the Clerk:
By striking out everything after the enacting clause and inserting in
lieu thereof the following:
That ?37-7-2 of the Code of West Virginia, 1931, as amended, be amended
and reenacted; and that said code be amended by adding thereto a new chapter,
designated ?37B-1-1, ?37B-1-2, ?37B-1-3, ?37B-1-4, ?37B-1-5, ?37B-1-6,
?37B-1-7, and ?37B-1-8 all to read as follows:
CHAPTER 37.
WASTE BY COTENANT.
ARTICLE 7. WASTE.
?37-7-2. Waste by cotenant.
If a tenant in common, joint tenant, or parcener commit commits
waste, he shall be or she is liable to his or her cotenants,
jointly or severally, for damages, except as provided for oil and gas
development in chapter thirty-seven-b of this code.
CHAPTER
37B. OIL AND GAS COTENANCY.
ARTICLE 1. COTENANCY FOR OIL AND GAS
DEVELOMENT.
?37B-1-1. Short title.
This chapter shall be known as the ?Oil and Gas Cotenancy Act.?
?37B-1-2. Declaration of public
policy; legislative findings.
It is declared to be the public policy of this state and in the public
interest to:
(a) Foster, encourage and promote exploration for and development,
production, utilization and conservation of oil and gas resources;
(b) Prohibit waste of oil and gas resources and unnecessary surface
loss of oil and gas and their constituents;
(c) Encourage the maximum recovery of oil and gas;
(d) Safeguard, protect and enforce the correlative rights of operators
and royalty owners in a pool of oil or gas to the end that each such operator
and royalty owner may obtain his or her just and equitable share of production
from that pool of oil or gas;
(e) Safeguard, protect and enforce the rights of surface owners; and
(f) Protect and enforce the clear provisions of contracts lawfully
made.
?37B-1-3. Definitions.
As used in this article, and in the absence of specific contract
language to the contrary:
?Operator? means any owner of the right to develop, operate and produce
oil and gas from a pool and to appropriate the oil and gas produced therefrom,
either for that person or for that person and others; and in the event the oil
is owned separately from the gas, the owner of the substance being produced or
sought to be produced from the pool is the ?owner? as to that pool.
?Person? means any individual, corporation, partnership, limited
liability company, association, receiver, trustee, executor, administrator,
guardian, fiduciary or other representative of any kind, and includes any
government or any political subdivision or any agency thereof.
?Pool? means an underground accumulation of petroleum or gas in a
single and separate reservoir (ordinarily a porous sandstone or limestone). It
is characterized by a single natural-pressure system so that production of
petroleum or gas from one part of the pool affects the reservoir pressure
throughout its extent.
??Post-production expense? means
an expense or cost subsequent to production including, but not limited to, an
expense or cost related to pipelines, surface facilities, telemetry, gathering,
dehydration, transportation, fractionation, compression, manufacturing,
processing, treating, or marketing of the oil or natural gas or any severance
or other taxes of any nature paid on the production thereof.
?Pro-rata share? means the allocation of revenues and costs
attributable to the lawful use of a mineral property that is calculated based
on the proportion that the net acreage of such ownership interest bears to the
total net acreage of jointly developed tracts in a development or production
unit that includes, all or part of, that mineral property, if any.
?Royalty owner? means any owner of oil and gas in place, or oil and gas
rights, to the extent that the owner is not an operator as defined in this
section.
??Unknown and unlocatable
interest owner? means a person vested with a present ownership interest in the
oil and gas in place in a mineral property whose present identity or location
cannot be determined from:
(A) A reasonable review of the records of the clerk of the county
commission, the sheriff, the assessor and the clerk of the circuit court in the
county or counties in which the interest is located, and includes unknown
heirs, successors and assigns known to be alive;
(B) Diligent inquiry in the vicinity of the owner ?s last known place
of residence; and
(C) Diligent inquiry to known interest owners in the same tract.
?37B-1-4. Lawful use of mineral property; unknown or
unlocatable cotenant; electable interests for non-consenting cotenant.
(a) If, after a reasonable effort to negotiate by the operator with all
royalty owners in an oil and gas mineral property, tenants in common, joint
tenants or coparceners representing three-fourths of the royalty interest in
the oil and gas mineral property consent to a lawful use of the mineral
property, then that use is permissible, is not waste and is not a trespass. In
that case, the consenting cotenants and their lessees, operators, agents,
contractors or assigns, are not liable for damages if they pay non-consenting
cotenants in accordance with subdivision (1) and reserve the amounts specified
in subdivision (2) in a trust account held for the benefit of unknown and
unlocatable interest owners in a state or federally-insured financial
institution.
(1) A non-consenting cotenant is entitled to receive, based on his or
her election, either:
(A) A production royalty, free of post-production expenses, equal to
the highest royalty percentage of his or her consenting cotenants in the same
mineral property, and a lease bonus payment equal to the average amount paid to
such consenting cotenants calculated on a net mineral acre basis; or
(B) To participate in the development and receive his or her pro-rata
share of the revenue and cost equal to his or her share of production
attributable to the tract or tracts being developed according to the interest
of such non-consenting cotenant, exclusive of any royalty or overriding royalty
reserved in any lease, assignments thereof or agreements relating thereto,
after the market value of such non-consenting cotenant ?s share of production,
exclusive of such royalty and overriding royalty, equals double the share of
such costs payable or charged to the interest of such non-consenting cotenant.
A non-consenting cotenant shall have forty-five days following the
operator ?s written delivery of its best and final lease offer in which to make
his or her election for either a production royalty or a revenue share, as
specified in paragraph (A) or paragraph (B) of this subdivision. If the
non-consenting cotenant fails to deliver a written election to the operator
prior to the expiration of such forty-five day period, he or she shall be
deemed to have made the election set forth in paragraph (A), subdivision (1) of
this subsection.
(2) Unknown and unlocatable interest owners shall be deemed to have
made the election set forth in paragraph (A), subdivision (1) of this subsection.
?37B-1-5. Information reporting.
(a) The developing cotenant, his or her lessees, operators, agents,
contractors or assigns shall provide the following information to all cotenants
receiving production royalties resulting from the development of mineral
property pursuant to this chapter;
(1) A name, number or combination of name and number that identifies
the lease, property, unit or well or wells for which payment is being made; and
the county in which the lease, property or well is located;
(2) Month and year of gas production;
(3) Total barrels of crude oil or number of Mcf, MMBTU or DTH of gas or
volume of natural gas liquids produced and sold;
(4) Price received per unit of oil or natural gas produced;
(5) Total amount of severance and other production taxes associated
with the volume of oil, natural gas or natural gas liquids produced, and other
deductions provided under the terms of the governing lease;
(6) Net value of total proceeds from the sale of oil, natural gas or
natural gas liquids from the property less taxes and deductions set forth in
subdivision (5) of this subsection;
(7) Interest owner ?s interest, expressed as a decimal or fraction, in
production from the unit or well reported pursuant to subdivision (1) of this
subsection;
(8) Interest owner ?s ratable share of the total value of the proceeds
of the sale of oil, natural gas or natural gas liquids prior to the deduction
of taxes and other deductions set forth in subdivision (5) of this subsection;
(9) Interest owner ?s ratable share of the proceeds from the sale of
oil, natural gas or natural gas liquids less the interest owner ?s ratable
share of taxes and other deductions set forth in subdivision (5) of this
subsection; and
(10) Contact information of the producer of the oil, natural gas or
natural gas liquids, including a mailing address and telephone number.
(b) Notwithstanding any of the other provisions of this article,
proceeds from production of oil, natural gas or natural gas liquids may be
accumulated by the developing cotenant, his or her lessees, operators, agents,
contractors or assigns until such time as proceeds attributable to any cotenant
exceeds $100 before making a remittance: Provided, That in any event regardless of the amount of money
accumulated, the developing cotenant, his or her lessees, operators, agents,
contractors or assigns shall remit proceeds attributable to his or her
cotenants not less than once annually. All accumulated proceeds shall be paid
to the person entitled thereto immediately, or as soon as practicable
thereafter, upon cessation of production of oil, natural gas or natural gas
liquids at a particular well or upon relinquishment or transfer of the payment
responsibility to another party.
(c) All production royalties due and owing to a royalty owner shall be
tendered in a timely manner which shall not exceed one hundred-eighty (180)
days from the date that a sale of oil, natural gas or natural gas liquids is
realized, unless such failure to remit is due to lack of record title in the
royalty owner. Failure to remit timely payment shall result in a mandatory
additional payment of an interest penalty to be set at the prime rate plus an
additional two percent until such payment is made to be compounded semiannually.
The prime rate shall be the rate published on the day of the sale of oil,
natural gas or natural gas liquids in the Wall Street Journal reflecting the
base rate on corporate loans posted by at least seventy-five percent of the
nation ?s thirty largest banks.
(d) A quarterly report of the volume of oil or natural gas produced
from any horizontal well drilled pursuant to this article shall be filed with
the Chief of Oil and Gas on a form prescribed by the Secretary of the West
Virginia Department of Environmental Protection. All reported data shall be
made available to the public through the Office of Oil and Gas ?s website
within a reasonable time after such data is collected. The Secretary has the
express authority pursuant to this article, as well as pursuant to the powers
enumerated in section two, article six, chapter twenty-two of this code to
promulgate rules and to amend the current rules to require timely quarterly
reporting of production data as well as to the establish a process for collecting
such data.
?37B-1-6. Limitation of liability of
non-consenting cotenant.
A non-consenting cotenant shall have no liability for bodily injury,
property, damage, or environmental claims arising out of site preparation,
mineral extraction, maintenance, reclamation and other operations with respect
to minerals produced from the non-consenting cotenant ?s property.
?37B-1-7. Surface use.
With respect to any tract of mineral property where an interest in the
oil and gas in place is owned by a non-consenting cotenant and is developed
pursuant to section four of this article, in no event shall drilling be
initiated upon, or other surface disturbance occur on, the surface of or above
such tract of minerals without the surface owner ?s consent; Provided, That this section shall not require surface use
owner consent for tracts of mineral property otherwise subject to an existing
surface use agreement or other valid contractual arrangement in which the owner
of the surface has granted rights to the operator to use the surface in
conjunction with oil and gas operations.
?37B-1-8. Severability.
??????????? The
provisions of this chapter are severable and accordingly, if any part of this
chapter is adjudged to be unconstitutional or invalid, that determination does
not affect the continuing validity of the remaining provisions of this chapter.
??????????? Following discussion,
??????????? The question being on the adoption
of Senator Clements? amendment to the bill, the same was put and did not
prevail.
There being no further amendments offered,
The bill, as just amended, was ordered to engrossment.
Engrossed Committee Substitute for Senate Bill 576 was then read a third
time and put upon its passage.
Pending discussion,
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Blair, Boso, Clements, Cline,
Ferns, Hall, Karnes, Maroney, Maynard, Mullins, Palumbo, Plymale, Prezioso,
Swope, Takubo, Trump, Weld, Woelfel and Carmichael (Mr. President)?19.
The nays were: Azinger, Beach, Boley, Facemire, Gaunch, Jeffries, Mann,
Miller, Ojeda, Romano, Smith, Stollings, Sypolt and Unger?14.
Absent: Rucker?1.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
On motion of Senator
Eng. Com. Sub. for Senate Bill
576?A Bill to amend and
reenact ?11-13A-3a of the Code of West Virginia, 1931, as amended; to amend and
reenact ?37-7-2 of said code; and to amend said code by adding thereto a new
chapter, designated ?37B-1-1, ?37B-1-2, ?37B-1-3, ?37B-1-4, ?37B-1-5, ?37B-1-6,
?37B-1-7, ?37B-1-8, ?37B-1-9 and ?37B-1-10, all relating generally to real
property; modifying imposition of tax on privilege of severing natural gas or
oil; providing an exception to waste for certain oil and gas development;
providing a short title; providing declarations of public policy and
legislative findings; providing definitions; providing that consent for the
lawful use of the oil and gas mineral property by three fourths of the royalty
interests in oil and gas mineral property is permissible, not waste and not
trespass; allowing nonconsenting cotenants to elect production royalty interest
or a working interest share of production; providing for the joint development
of multiple contiguous oil and gas leases by horizontal drilling unless
development is expressly prohibited by agreement; limiting jointly developed
leases to six hundred forty acres with a ten percent tolerance; requiring any
operator that elects to develop leases jointly to pay owners of the surface, on
a pro rata share, one well pad fee of $100,000, as indexed to the consumer
price index, for each tract of land upon which any portion of the well pad sits;
allowing for a net acreage fractional share royalty interest, free of
post-production expenses, for multiple contiguous leases jointly developed;
providing for timely payment of royalties and requiring specified information
to be remitted with such payments; requiring quarterly reporting of production
data to Department of Environmental Protection for horizontal wells drilled
pursuant to the provisions herein; providing that cotenants are not liable for
damages as a result of the lawful use of oil and gas mineral property;
requiring surface use agreements in specified circumstances and preserving
common law rights; and providing for severability of provisions.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
588, Relating to
reproduction, distribution and sale of tax maps.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
On the passage of the bill, the yeas were: Beach, Blair, Boley, Boso,
Clements, Cline, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann, Maroney, Maynard,
Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Smith, Stollings, Swope,
Sypolt, Takubo, Trump, Unger, Weld, Woelfel and Carmichael (Mr. President)?30.
The nays were: Azinger, Facemire and Romano?3.
Absent: Rucker?1.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
606, Relating to minimum
wage and maximum hours for employees.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
Senator
The Chair replied that any impact on Senator
On the passage of the bill, the yeas were: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann, Maroney,
Maynard, Miller, Mullins, Palumbo, Plymale, Smith, Swope, Sypolt, Takubo,
Trump, Unger, Weld, Woelfel and Carmichael (Mr. President)?28.
The nays were: Facemire, Ojeda, Prezioso, Romano and Stollings?5.
Absent: Rucker?1.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
609, Creating additional
flexibility for school systems in use of school aid funds.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
Pending discussion and a point of inquiry to the President, with
resultant response thereto,
(Senator Plymale in the Chair.)
Pending extended discussion,
(Senator Carmichael, Mr. President, in the
Chair.)
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Blair, Boso, Clements, Cline,
Ferns, Gaunch, Hall, Mann, Maroney, Mullins, Rucker, Smith, Sypolt, Takubo,
Trump, Weld and Carmichael (Mr. President)?17.
The nays were: Azinger, Beach, Boley, Facemire, Jeffries, Karnes, Maynard,
Miller, Ojeda, Palumbo, Plymale, Prezioso, Romano, Stollings, Unger and
Woelfel?16.
Absent: Swope?1.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
The following amendment to the title of the bill, from the Committee on
Eng. Com. Sub. for Senate Bill
609?A Bill to amend and
reenact ?11-8-6f and ?11-8-12 of the Code of West Virginia, 1931, as amended;
to amend and reenact ?18-9A-2, ?18-9A-4, ?18-9A-5, ?18-9A-6a, ?18-9A-7,
?18-9A-9, ?18-9A-10 and ?18-9A-11 of said code; and to amend said code by
adding thereto a new section, designated ?18-9A-25, all relating to public
school support; removing limit on increase in total property tax revenues if
the current regular levy rates of the county boards of education were to be
imposed; setting the regular levy rates for county boards of education, but
allowing the boards to reduce the rates to no lower than certain specified
levels; allowing a county board to change its proposed regular levy rates from
the original proposed levy rates in its required statement to the Auditor;
deleting required periodic legislative review of definition of ?net enrollment?;
changing term ?levies for general current expense purposes? to ?maximum levies
for general current expense purposes? and modifying the definition to mean
ninety percent of the maximum levy rates for county boards of education;
determining allowance for fundable professional educators at set ratio, rather
than the number employed subject to a limit; providing for determination of
allowance for fundable positions in excess of number employed; deleting expired
provisions; basing minimum professional instructional personnel required on
percent of fundable professional educators or the number employed, whichever is
less; providing for prorating professional instructional personnel among
participating counties in joint school or program or service; removing penalty
for not meeting applicable professional instructional personnel ratio for
2017-2018 school year; deleting expired provisions; deleting required periodic
legislative review of density category ratios; determining allowance for
fundable service personnel at set ratio, rather than number employed subject to
a limit; providing for determination of allowance for fundable positions in
excess of number employed; providing for proration of number and allowance of
personnel employed in part by state and county funds; adding professional
student support personnel allowance to calculation of Teachers Retirement Fund
allowance; basing Teachers Retirement Fund allowance on average retirement
contribution rate of each county and defining ?average rate?; allowing limited
portion of funds for bus purchases to be used for facility and equipment repair
maintenance and improvement or replacement or other current expense priorities
if requested and approved by state superintendent following verification;
changing calculation of allowance for current expense from percent allowances
for professional and service personnel to county ?s state average costs per
square footage per student for operations and maintenance; basing the allowance
to improve instructional programs and instructional technology on the portion
of the increase in local share amount for the next school year that is due to
an increase in assessed values only; removing authorization for use of
instructional improvement funds for implementation and maintenance of the
uniform integrated regional computer information system; removing requirement
for fully utilizing applicable provisions of allowances for professional and
service personnel before using instructional improvement funds for employment;
removing restriction limiting use of new instructional improvement funds for
employment except for technology system specialists until certain determination
made by state superintendent; authorizing use of instructional technology
improvement funds for employment of technology system specialists and requiring
amount used to be included and justified in strategic technology plan;
specifying when certain debt service payments are to be made into School
Building Capital Improvement Fund; authorizing use of percentages of
allocations for improving instructional programs and improving instructional
technology for facility and equipment repair, maintenance and improvement or
replacement and other current expense priorities and for emergency purposes;
requiring amounts used to be included and justified in respective strategic
plans; and basing the computation of local share on the maximum levies for
general current expense purposes.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
At the request of Senator Woelfel, and by unanimous consent, the Senate
returned to the sixth order of business, which agenda includes the making of
main motions.
??????????? On motion of Senator Woelfel, the
Senate reconsidered the vote by which in earlier proceedings today it passed
??????????? Eng.
Com. Sub. for Com. Sub. for Senate Bill 521, Relating generally to Public
Defender Services.
??????????? The vote thereon having been reconsidered,
??????????? The question again being on the
passage of the bill, the yeas were: Azinger, Blair, Boley, Boso, Clements,
Cline, Ferns, Gaunch, Hall, Karnes, Mann, Maroney, Maynard, Mullins, Rucker,
Smith, Stollings, Swope, Sypolt, Takubo, Trump, Weld and Carmichael (Mr.
President)?23.
The nays were: Beach, Facemire, Jeffries, Miller, Ojeda, Palumbo,
Plymale, Prezioso, Romano, Unger and Woelfel?11.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for
S. B. 521) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate and request concurrence therein.
Eng. Senate Bill 613, Relating to composition of State Fire
Commission.
On third reading, coming up in regular order, was reported by the Clerk.
On motion of Senator Ferns, the bill was committed to the Committee on
Rules.
Eng. Com. Sub. for Senate Bill
636, Authorizing State Fire
Commission establish program to address problems facing VFDs.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
Pending discussion,
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Com. Sub. for Senate Bill
637, Relating to private
club operations requirements.
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: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
On motion of Senator Ferns, the Senate recessed until 6 p.m.
Upon expiration of the recess, the Senate reconvened and resumed
business under the eighth order, the next bill coming up in numerical sequence
being
Eng. Com. Sub. for Senate Bill
656, Relating to Student
Data Accessibility, Transparency and Accountability Act.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
On the passage of the bill, the yeas were: Beach, Blair, Boley, Boso,
Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Ojeda, Palumbo, Plymale, Prezioso, Romano, Rucker,
Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel and
Carmichael (Mr. President)?32.
The nays were: None.
Absent: Azinger and Mullins?2.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Senate Bill 664, Removing limitation on amount counties
collect on hotel occupancy tax.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
On the passage of the bill, the yeas were: Beach, Blair, Boley, Boso,
Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Mann, Maroney,
Maynard, Miller, Ojeda, Palumbo, Plymale, Prezioso, Romano, Smith, Stollings,
Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel and Carmichael (Mr.
President)?30.
The nays were: Karnes and Rucker?2.
Absent: Azinger and Mullins?2.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Senate Bill 667, Limiting authority of Attorney General to
disclose certain information provided by Tax Commissioner.
On third reading, coming up in regular order, was read a third time.
At the request of Senator
Eng. Senate Bill 687, Relating generally to coal mining, safety
and environmental protection.
On third reading, coming up in regular order, was read a third time and
put upon its passage.
Pending discussion,
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Azinger, Blair, Boley, Boso,
Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann, Maroney,
Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Rucker, Smith,
Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel and Carmichael
(Mr. President)?32.
The nays were: Beach and Romano?2.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Thereafter, at the request of Senator
Eng. Senate Bill 688, Correcting technical error within Solid
Waste Management Act.
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: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Senator
On this question, the yeas were: Azinger, Beach, Blair, Boley, Boso,
Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (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.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Senate Bill 689, Relating to payment of small claims by DOH.
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: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Senator
On this question, the yeas were: Azinger, Beach, Blair, Boley, Boso,
Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (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.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Senate Bill 690, Authorizing WV State Police impose and
collect fees for agencies and entities using their facilities.
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: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Senator
On this question, the yeas were: Azinger, Beach, Blair, Boley, Boso,
Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (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.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Senate Bill 691, Relating to off-road vehicles.
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: Azinger, Blair, Boley, Boso,
Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?33.
The nays were: Beach?1.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Eng. Senate Bill 693, Creating WV Uniform Fiduciary Access to
Digital Assets Act.
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: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Senate Joint Resolution 4, County Economic Development Amendment.
On third reading, coming up in regular order, with the right having been
granted on yesterday, Tuesday, March 28, 2017, for amendments to be received on
third reading, was reported by the Clerk.
There being no amendments offered,
The resolution was ordered to engrossment.
Engrossed
On this question, the yeas were: Azinger, Blair, Boley, Boso, Clements,
Cline, Ferns, Gaunch, Hall, Karnes, Mann, Maroney, Maynard, Mullins, Rucker,
Smith, Swope, Sypolt, Takubo, Trump, Weld and Carmichael (Mr. President)?22.
The nays were: Beach, Facemire, Jeffries, Miller, Ojeda, Palumbo,
Plymale, Prezioso, Romano, Stollings, Unger and Woelfel?12.
Absent: None.
So, two thirds of all the members elected to the Senate not having voted
in the affirmative, the President declared the resolution (Eng.
Following discussion,
On motion of Senator Woelfel, the Senate reconsidered the vote by which
it immediately hereinbefore rejected
Eng. Senate Joint Resolution
4, County Economic
Development Amendment.
The vote thereon having been reconsidered,
The question now being on the adoption of Engrossed Senate Joint
Resolution 4.
Pending discussion,
Senator Beach arose to a point of order that under Senate Rule 55, which states in part ?No person, not a member of the Senate, shall, when the Senate is in session, seek in any manner whatsoever, including electronic communications, to influence the vote or opinion of any Senator on any subject of legislative consideration, under penalty of disbarment from the Chamber . . .?, a lobbyist in the gallery was in contravention to the rule as he was lobbying the members during consideration of Engrossed Senate Joint Resolution 4.
Which point of order, the President ruled well taken.
Pending discussion,
The question now being ?Shall Engrossed
On the adoption of the resolution, the yeas were: Azinger, Beach, Blair, Boley, Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann, Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano, Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel and Carmichael (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 resolution (Eng. S. J. R. 4) adopted, as follows:
Eng. Senate Joint Resolution 4?Proposing an amendment to the Constitution of the State of West
Virginia, amending article X thereof, by adding thereto a new section,
designated section one-d, relating to authorizing the Legislature to, by
general law, allocate a portion of ad valorem property taxes paid by owners of
certain new manufacturing facilities and large capital additions to existing
manufacturing facilities located in counties in which county commissions elect
to fund infrastructure capital improvements, in whole or in part, using
property taxes; numbering and designating such proposed amendment; and
providing a summarized statement of the purpose of such proposed amendment.
Resolved
by the Legislature of West Virginia, two thirds of the members elected to each
house agreeing thereto:
That the question of ratification or
rejection of an amendment to the Constitution of the State of West Virginia be
submitted to the voters of the state at the next general election to be held in
the year
ARTICLE X. TAXATION AND FINANCE.
?1d. Use of property taxes to finance
county economic development.
Any other provision of this Constitution
notwithstanding, the Legislature may, by general law, authorize county
commissions to allocate and spend a portion of property taxes imposed pursuant
to section one, article X of this Constitution, but not including taxes
attributable to excess levies and levies for bonded indebtedness, which are
paid by owners of new manufacturing facilities in their county that cost more
than $50 million, or by owners of new capital additions to existing
manufacturing facilities in their county when the capital addition costs more
than $50 million. The Legislature may, from time to time, increase these
thresholds and may impose restrictions and conditions on the use of property
taxes allocated pursuant to this section. The property taxes allocated pursuant
to this section may be used to pay for infrastructure capital improvements on a
pay-as-you go basis and to pay debt service on infrastructure capital
improvement bonds. However, when the property taxes are used to pay debt service
on infrastructure capital improvement bonds, the bonds may be issued without a
vote of the people for a period of not more than thirty years. The allocation
of property tax collections paid by a manufacturing facility described in this
section ceases thirty years after the first year of the allocation in the
county. For purposes of this section, the term ?infrastructure capital
improvement project? includes the following public facilities or assets that
are owned, supported or established by county government or the state at the
request of county government: (1) Water treatment, storage and
distribution facilities; (2) wastewater collection, conveyance, treatment and
disposal facilities; (3) stormwater collection and management facilities; (4)
flood control facilities; (5) public primary and secondary
school facilities, when owned by the county board of education; (6) public
roads, bridges and rights-of-way, when owned by the state; (7) parks and
recreational facilities, when owned by the county, a municipality or joint
economic development entities; (8) law enforcement, emergency medical, rescue
and fire protection facilities; and (9) other infrastructure capital
improvement projects as defined by the Legislature.
Resolved further,
That in accordance with the provisions of article eleven, chapter three of the
Code of West Virginia, 1931, as amended, such proposed amendment is hereby
numbered ?Amendment No. 1? and designated as the ?County Economic Development
Amendment? and the purpose of the proposed amendment is summarized as follows:
?To amend the state Constitution to permit the Legislature to allow county
commissions to fund county infrastructure projects to promote economic
development using property taxes imposed on new manufacturing facilities and
capital additions to existing manufacturing facilities when the new facility,
or the capital addition, costs more than $50 million without requiring the
Legislature to make local levying body whole for some or all of the revenue
foregone during the period of the property taxes are allocated pursuant to this
section.?
Ordered,
That The Clerk communicate to the House of Delegates the action of the Senate
and request concurrence therein.
Eng. Com. Sub. for Senate
Joint Resolution 6, Roads
to Prosperity Amendment of 2017.
On third reading, coming up in regular order, was read a third time and
put upon its adoption.
Pending discussion,
The question being ?Shall Engrossed Committee Substitute for Senate
Joint Resolution 6 be adopted??
On the adoption of the resolution, the yeas were: Azinger, Beach, Blair,
Boley, Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes,
Mann, Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso,
Romano, Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld,
Woelfel and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a two thirds of all the members elected to the Senate having voted
in the affirmative, the President declared the resolution (Eng.
Eng. Com. Sub. for Senate
Joint Resolution 6?Proposing an amendment to the
Constitution of the State of West Virginia,
Resolved by the
Legislature of West Virginia, two thirds of the members elected to each house
agreeing thereto:
That the question of ratification or
rejection of an amendment to the Constitution of the State of West Virginia be
submitted to the voters of the state at a special election to be held at a date
set by the Governor in 2017 and proclaimed in accordance with section three,
article eleven, chapter three of the Code of West Virginia, which proposed
amendment is to read as follows:
Roads to Prosperity
Amendment of 2017.
(a) The Legislature shall have power to
authorize the issuing and selling of state bonds not exceeding in the aggregate
$1.6 billion dollars. The proceeds of said bonds are hereby authorized to be
issued and sold over a four-year period in the following amounts:
(1) July 1, 2018, an amount not to
exceed $800 million;
(2) July 1, 2019, an amount not to
exceed $400 million;
(3) July 1, 2020, an amount not to
exceed $200 million; and
(4) July 1, 2021, an amount not to
exceed $200 million.
Any bonds not issued under the
provisions of subdivisions (1) through (3), inclusive, of this subsection may
be carried forward and issued in any subsequent year before July 1, 2022.
(b) The proceeds of the bonds shall be
used and appropriated for the following purposes:
(1) Matching available federal funds
for highway and bridge construction in this state; and
(2) General highway and secondary road
and bridge construction or improvements in each of the fifty-five counties.
(c) Any interest that accrues on the
issued bonds prior to payment shall only be used for the purposes of the bonds.
Resolved further, That in accordance with the
provisions of article eleven, chapter three of the Code of West Virginia, 1931,
as amended, such proposed amendment is hereby numbered ?Amendment No. 1? and
designated as the ?
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Thereafter, at the request of Senator
The end of today?s third reading calendar having been reached, the
Senate returned of the consideration of
Eng. Com. Sub. for Senate Bill
375, Relating to rate and
measure of severance taxes on certain natural resources.
On third reading, coming up deferred order, was read a third time.
Pending discussion,
On motion of Senator Ferns, the bill was committed to the Committee on
Rules.
Action as to Engrossed Committee Substitute for Senate Bill 375 having
been concluded, the Senate proceeded to the consideration of
Eng. Senate Bill 667, Limiting authority of Attorney General to
disclose certain information provided by Tax Commissioner.
Having been read a third time in earlier proceedings today, and now
coming up in deferred order, was reported by the Clerk.
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Senator
On this question, the yeas were: Azinger, Beach, Blair, Boley, Boso,
Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (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.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill
2459, Relating to
regulation of health care and the certificate of need process.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on
By striking out everything after the enacting clause and inserting in
lieu thereof the following:
That ?16-2D-5f of the Code of West Virginia, 1931, as amended, be
repealed; that ?16-5F-1; ?16-5F-2, ?16-5F-3, ?16-5F-4, ?16-5F-5, ?16-5F-6 and
?16-5F-7 be repealed; that ?16-29B-6, ?16-29B-7, ?16-29B-9, ?16-29B-10,
?16-29B-11, ?16-29B-17, ?16-29B-18, ?16-29B-22, ?16-29B-23, ?16-29B-24,
?16-29B-25, ?16-25B-27, and ?16-29B-29 be repealed; that ?16-29I-1, ?16-29I-2,
?16-29I-3, ?16-29I-4, ?16-29I-5, ?16-29I-6, ?16-29I-7, ?16-29I-8, ?16-29I-9 and
?16-29I-10 be repealed; that ?5F-1-3a of said code be amended and reenacted;
that ?6-7-2a of said code be amended and reenacted; that ?9-4C-7 and ?9-4C-8 of
said code be amended and reenacted; that ?11-27-9 and ?11-27-11 of said code be
amended and reenacted; that ?16-2D-2, ?16-2D-3, ?16-2D-4, ?16-2D-5, ?16-2D-8,
?16-2D-9, ?16-2D-10, ?16-2D-11, ?16-2D-13, ?16-2D-15 and ?16-2D-16 of said code
be amended and reenacted; that ?16-5B-17 of said code be amended and reenacted;
that ?16-29B-2, ?16-29B-3, ?16-29B-5, ?16-29B-8, ?16-29B-12, ?16-29B-26 and
?16-29B-28; that said code be amended by adding thereto a new section,
designated ?16-29B-5a; that said code be amended by adding thereto a new
section, designated ?16-29B-30; that said code be amended by adding thereto a
new section, designated ?16-29G-1a; that ?16-29G-4 of said code be amended and
reenacted; that ?21-5F-4 of said code be amended and reenacted; that ?33-4A-1,
?33-4A-2, ?33-4A-3, ?33-4A-5, ?33-4A-6, and ?33-4A-7 of said code be amended
and reenacted; and that ?33-16D-16 of said code be amended and reenacted, all
to read as follows:
CHAPTER 5F.
REORGANIZATION OF THE EXECUTIVE BRANCH OF STATE GOVERNMENT.
ARTICLE 1.
GENERAL PROVISIONS.
?5F-1-3a. Executive compensation
commission.
There is hereby created an executive
compensation commission composed of three members, one of whom shall be the
secretary of administration, one of whom shall be appointed by the Governor
from the names of two or more nominees submitted by the President of the
Senate, and one of whom shall be appointed by the Governor from the names of
two or more nominees submitted by the Speaker of the House of Delegates. The
names of such nominees shall be submitted to the Governor by not later than
June 1, 2000, and the appointment of such members shall be made by the Governor
by not later than July 1, 2000. The members appointed by the Governor shall
have had significant business management experience at the time of their
appointment and shall serve without compensation other than reimbursement for
their reasonable expenses necessarily incurred in the performance of their
commission duties. For the 2001 regular session of the Legislature and every
four years thereafter, the commission shall review the compensation for cabinet
secretaries and other appointed officers of this state, including, but not
limited to, the following: Commissioner, Division of Highways; commissioner,
Bureau of Employment Programs; director, Division of Environmental Protection;
commissioner, Bureau of Senior Services; director of tourism; commissioner,
division of tax; administrator, division of health; commissioner, Division of
Corrections; director, Division of Natural Resources; superintendent, state
police; administrator, lottery division; director, Public Employees Insurance
Agency; administrator, Alcohol Beverage Control Commission; commissioner,
Division of Motor Vehicles; director, Division of Personnel; Adjutant General; chairman,
Health Care Authority; members, Health Care Authority the Executive
Director of the Health Care Authority; director, Division of Rehabilitation
Services; executive director, educational broadcasting authority; executive
secretary, Library Commission; chairman and members of the Public Service
Commission; director of emergency services; administrator, division of human
services; executive director, Human Rights Commission; director, division of
Veterans Affairs; director, office of miner?s health safety and training;
commissioner, Division of Banking; commissioner, division of insurance;
commissioner, Division of Culture and History; commissioner, Division of Labor;
director, Prosecuting Attorneys Institute; director, Board of Risk and
Insurance Management; commissioner, oil and gas conservation commission;
director, geological and economic survey; executive director, water development
authority; executive director, Public Defender Services; director, state rail
authority; chairman and members of the Parole Board; members, employment
security review board; members, workers? compensation appeal board; chairman,
Racing Commission; executive director, women?s commission; and director,
hospital finance authority.
Following this review, but not later
than the twenty-first day of such regular session, the commission shall submit
an executive compensation report to the Legislature to include specific
recommendations for adjusting the compensation for the officers described in
this section. The recommendation may be in the form of a bill to be introduced
in each house to amend this section to incorporate the recommended adjustments.
CHAPTER 6.
GENERAL PROVISIONS RESPECTING OFFICERS.
ARTICLE 7.
COMPENSATION AND ALLOWANCES.
?6-7-2a. Terms of certain appointive
state officers; appointment; qualifications; powers and salaries of officers.
(a) Each of the following appointive
state officers named in this subsection shall be appointed by the Governor, by
and with the advice and consent of the Senate. Each of the appointive state
officers serves at the will and pleasure of the Governor for the term for which
the Governor was elected and until the respective state officers? successors
have been appointed and qualified. Each of the appointive state officers are
subject to the existing qualifications for holding each respective office and
each has and is hereby granted all of the powers and authority and shall
perform all of the functions and services heretofore vested in and performed by
virtue of existing law respecting each office.
The annual salary of each named
appointive state officer is as follows:
Commissioner, Division of Highways,
$92,500; Commissioner, Division of Corrections, $80,000; Director, Division of
Natural Resources, $75,000; Superintendent, State Police, $85,000;
Commissioner, Division of Banking, $75,000; Commissioner, Division of Culture
and History, $65,000; Commissioner, Alcohol Beverage Control Commission,
$75,000; Commissioner, Division of Motor Vehicles, $75,000; Chairman, Health
Care Authority, $80,000; members, Health Care Authority, $70,000 Director,
Human Rights Commission, $55,000; Commissioner, Division of Labor, $70,000;
prior to July 1, 2011, Director, Division of Veterans Affairs, $65,000;
Chairperson, Board of Parole, $55,000; members, Board of Parole, $50,000;
members, Employment Security Review Board, $17,000; and Commissioner, Workforce
West Virginia, $75,000. Secretaries of the departments shall be paid an annual
salary as follows: Health and Human Resources, $95,000: Provided, That
effective July 1, 2013, the Secretary of the Department of Health and Human
Resources shall be paid an annual salary not to exceed $175,000;
Transportation, $95,000: Provided, however, That if the same person is
serving as both the Secretary of Transportation and the Commissioner of
Highways, he or she shall be paid $120,000; Revenue, $95,000; Military Affairs
and Public Safety, $95,000; Administration, $95,000; Education and the Arts,
$95,000; Commerce, $95,000; Veterans? Assistance, $95,000; and Environmental
Protection,$95,000: Provided further, That any officer specified in this
subsection whose salary is increased by more than $5,000 as a result of the
amendment and reenactment of this section during the 2011 regular session of
the Legislature shall be paid the salary increase in increments of $5,000 per
fiscal year beginning July 1, 2011, up to the maximum salary provided in this
subsection.
(b) Each of the state officers named in
this subsection shall continue to be appointed in the manner prescribed in this
code and shall be paid an annual salary as follows:
Director, Board of Risk and Insurance
Management, $80,000; Director, Division of Rehabilitation Services, $70,000;
Director, Division of Personnel, $70,000; Executive Director, Educational
Broadcasting Authority, $75,000; Secretary, Library Commission, $72,000; Director,
Geological and Economic Survey, $75,000; Executive Director, Prosecuting
Attorneys Institute, $80,000; Executive Director, Public Defender Services,
$70,000; Commissioner, Bureau of Senior Services, $75,000; Executive Director,
Women?s Commission, $45,000; Director, Hospital Finance Authority, $35,000;
member, Racing Commission, $12,000; Chairman, Public Service Commission,
$85,000; members, Public Service Commission, $85,000; Director, Division of
Forestry, $75,000; Director, Division of Juvenile Services, $80,000; and
Executive Director, Regional Jail and Correctional Facility Authority, $80,000 and
Executive Director of the Health Care Authority, $80,000.
(c) Each of the following appointive
state officers named in this subsection shall be appointed by the Governor, by
and with the advice and consent of the Senate. Each of the appointive state
officers serves at the will and pleasure of the Governor for the term for which
the Governor was elected and until the respective state officers? successors have
been appointed and qualified. Each of the appointive state officers are subject
to the existing qualifications for holding each respective office and each has
and is hereby granted all of the powers and authority and shall perform all of
the functions and services heretofore vested in and performed by virtue of
existing law respecting each office.
The annual salary of each named
appointive state officer shall be as follows:
Commissioner, State Tax Division,
$92,500; Insurance Commissioner, $92,500; Director, Lottery Commission,
$92,500; Director, Division of Homeland Security and Emergency Management,
$65,000; and Adjutant General, $125,000.
(d) No increase in the salary of any
appointive state officer pursuant to this section may be paid until and unless
the appointive state officer has first filed with the State Auditor and the
Legislative Auditor a sworn statement, on a form to be prescribed by the
Attorney General, certifying that his or her spending unit is in compliance
with any general law providing for a salary increase for his or her employees.
The Attorney General shall prepare and distribute the form to the affected
spending units.
CHAPTER NINE.
HUMAN SERVICES.
ARTICLE 4C.
HEALTH CARE PROVIDER MEDICAID ENHANCEMENT ACT.
?9-4C-7. Powers and duties.
(a) Each board created pursuant to this
article shall:
(1) Develop, recommend and review
reimbursement methodology where applicable, and develop and recommend a
reasonable provider fee schedule, in relation to its respective provider
groups, so that the schedule conforms with federal Medicaid laws and remains
within the limits of annual funding available to the single state agency for
the Medicaid program. In developing the fee schedule the board may refer to a
nationally published regional specific fee schedule, if available, as selected
by the secretary in accordance with section eight of this article. The board
may consider identified health care priorities in developing its fee schedule
to the extent permitted by applicable federal Medicaid laws, and may recommend
higher reimbursement rates for basic primary and preventative health care
services than for other services. In identifying basic primary and preventative
health care services, the board may consider factors, including, but not
limited to, services defined and prioritized by the basic services task force
of the health care planning commission in its report issued in December of the
year 1992; and minimum benefits and coverages for policies of insurance as set
forth in section fifteen, article fifteen, chapter thirty-three of this code
and section four, article sixteen-c of said chapter and rules of the Insurance
Commissioner promulgated thereunder. If the single state agency approves the
adjustments to the fee schedule, it shall implement the provider fee schedule;
(2) Review its respective provider fee
schedule on a quarterly basis and recommend to the single state agency any
adjustments it considers necessary. If the single state agency approves any of
the board?s recommendations, it shall immediately implement those adjustments
and shall report the same to the Joint Committee on Government and Finance on a
quarterly basis;
(3) Assist and enhance communications
between participating providers and the Department of Health and Human
Resources;
(4) Meet and confer with
representatives from each specialty area within its respective provider group
so that equity in reimbursement increases or decreases may be achieved to the
greatest extent possible and when appropriate to meet and confer with other provider
boards; and
(5) Appoint a chairperson to preside
over all official transactions of the board.
(b) Each board may carry out any other
powers and duties as prescribed to it by the secretary.
(c) Nothing in this section gives any
board the authority to interfere with the discretion and judgment given to the
single state agency that administers the state?s Medicaid program. If the
single state agency disapproves the recommendations or adjustments to the fee
schedule, it is expressly authorized to make any modifications to fee schedules
as are necessary to ensure that total financial requirements of the agency for
the current fiscal year with respect to the state?s Medicaid plan are met and
shall report such modifications to the Joint Committee on Government and
Finance on a quarterly basis. The purpose of each board is to assist and
enhance the role of the single state agency in carrying out its mandate by
acting as a means of communication between the health care provider community
and the agency.
(d) In addition to the duties specified
in subsection (a) of this section, the ambulance service provider Medicaid
board shall work with the health care cost review authority to develop a
method for regulating rates charged by ambulance services. The health care cost
review authority shall report its findings to the Legislature by January 1,
1994. The costs of the report shall be paid by the health care cost review
authority. In this capacity only, the chairperson of the health care cost
review authority shall serve as an ex officio, nonvoting member of the board
(e) On a quarterly basis, the single
state agency and the board shall report the status of the fund, any adjustments
to the fee schedule and the fee schedule for each health care provider
identified in section two of this article to the Joint Committee on Government
and Finance.
?9-4C-8. Duties of secretary of
Department of Health and Human Resources.
(a) The secretary, or his or her
designee, shall serve on each board created pursuant to this article as an ex
officio, nonvoting member and shall keep and maintain records for each board.
(b) In relation to outpatient hospital
services, the secretary shall cooperate with the health care cost review
authority to furnish information needed for reporting purposes. This
information includes, but is not limited to, the following:
(1) For each hospital, the amount of
payments and related billed charges for hospital outpatient services each
month;
(2) The percentage of the state?s share
of Medicaid program financial obligation from time to time as necessary; and
(3) Any other financial and statistical
information necessary for the health care cost review authority to
determine the net effect of any cost shift.
(c) The secretary shall determine an
appropriate resolution for conflicts arising between the various boards.
(d) The secretary shall purchase nationally published fee schedules to be used, if available, as a reference by the Medicaid enhancement boards in developing fee schedules.
CHAPTER 11.
TAXATION.
ARTICLE 27.
HEALTH CARE PROVIDER TAXES.
?11-27-9. Imposition of tax on
providers of inpatient hospital services.
(a) Imposition
of tax. ? For the privilege of engaging or continuing within this state in
the business of providing inpatient hospital services, there is hereby levied
and shall be collected from every person rendering such service an annual
broad-based health care related tax: Provided,
That a hospital which meets all the requirements of section twenty-one, article
twenty-nine-b, chapter sixteen of this code and regulations thereunder may
change or amend its schedule of rates to the extent necessary to compensate for
the tax in accordance with the following procedures:
(1) The health care cost review
authority shall allow a temporary change in a hospital?s rates which may be
effective immediately upon filing and in advance of review procedures when a
hospital files a verified claim that such temporary rate changes are in the
public interest, and are necessary to prevent insolvency, to maintain
accreditation or for emergency repairs or to relieve undue financial hardship.
The verified claim shall state the facts supporting the hospital?s position,
the amount of increase in rates required to alleviate the situation and shall
summarize the overall effect of the rate increase. The claim shall be verified
by either the chairman of the hospital?s governing body or by the chief
executive officer of the hospital.
(2) Following receipt of the verified
claim for temporary relief, the health care cost review authority shall review
the claim through its usual procedures and standards; however, this power of
review does not affect the hospital?s ability to place the temporary rate
increase into effect immediately. The review of the hospital?s claim shall be
for a permanent rate increase and the health care cost review authority may
include such other factual information in the review as may be necessary for a
permanent rate increase review. As a result of its findings from the permanent
review, the health care cost review authority may allow the temporary rate
increase to become permanent, to deny any increase at all, to allow a lesser
increase, or to allow a greater increase.
(3) When any change affecting an
increase in rates goes into effect before a final order is entered in the
proceedings, for whatever reasons, where it deems it necessary and practicable,
the health care cost review authority may order the hospital to keep a detailed
and accurate account of all amounts received by reason of the increase in rates
and the purchasers and third-party payors from whom such amounts were received.
At the conclusion of any hearing, appeal or other proceeding, the health care
cost review authority may order the hospital to refund with interest to each
affected purchaser and/or third-party payor any part of the increase in rates
that may be held to be excessive or unreasonable. In the event a refund is not
practicable, the hospital shall, under appropriate terms and conditions
determined by the health care cost review authority, charge over and amortize
by means of a temporary decrease in rates whatever income is realized from that
portion of the increase in rates which was subsequently held to be excessive or
unreasonable.
(4) The health care cost review
authority, upon a determination that a hospital has overcharged purchasers or
charged purchasers at rates not approved by the health care cost review
authority or charged rates which were subsequently held to be excessive or
unreasonable, may prescribe rebates to purchasers and third-party payors in
effect by the aggregate total of the overcharge.
(5) the rate adjustment provided for in
this section is limited to a single adjustment during the initial year of the
imposition of the tax provided for in this section.
?(b) Rate
and measure of tax. ? The tax imposed in subsection (a) of this section
shall be two and one-half percent of the gross receipts derived by the taxpayer
from furnishing inpatient hospital services in this state.
(c) Definitions. ?
(1) ?Gross receipts? means the amount
received or receivable, whether in cash or in kind, from patients, third-party
payors and others for inpatient hospital services furnished by the provider,
including retroactive adjustments under reimbursement agreements with
third-party payors, without any deduction for any expenses of any kind: Provided, That accrual basis providers
shall be allowed to reduce gross receipts by their contractual allowances, to
the extent such allowances are included therein, and by bad debts, to the
extent the amount of such bad debts was previously included in gross receipts
upon which the tax imposed by this section was paid.
(2) ?Contractual allowances? means the
difference between revenue (gross receipts) at established rates and amounts
realizable from third-party payors under contractual agreements.
(3) ?Inpatient hospital services? means
those services that are inpatient hospital services for purposes of Section
1903(w) of the Social Security Act.
(d) Effective
date. ? The tax imposed by this section shall apply to gross receipts
received or receivable by providers after May 31, 1993.
?11-27-11. Imposition of tax on
providers of nursing facility services, other than services of intermediate
care facilities for individuals with an intellectual disability.
(a) Imposition
of tax. ? For the privilege of engaging or continuing within this state in
the business of providing nursing facility services, other than those services
of intermediate care facilities for individuals with an intellectual
disability, there is levied and shall be collected from every person rendering
such service an annual broad-based health care-related tax: Provided, That hospitals which provide
nursing facility services may adjust nursing facility rates to the extent
necessary to compensate for the tax: without first obtaining approval from the
Health Care Authority Provided, however,
That the rate adjustment is limited to a single adjustment during the initial
year of the imposition of the tax which adjustment is exempt from prospective
review by the Health Care Authority and further which is limited to an amount
not to exceed the amount of the tax which is levied against the hospital for
the provision of nursing facility services pursuant to this section. The Health
Care Authority shall retroactively review the rate increases implemented by the
hospitals under this section during the regular rate review process. A hospital
which fails to meet the criteria established by this section for a rate
increase exempt from prospective review is subject to the penalties imposed
under article twenty-nine-b, chapter sixteen of the code.
(b) Rate
and measure of tax. ? The tax imposed in subsection (a) of this section is
five and one-half percent of the gross receipts derived by the taxpayer from
furnishing nursing facility services in this state, other than services of
intermediate care facilities for individuals with an intellectual disability. This
rate shall be increased to five and seventy-two one hundredths percent of the
gross receipts received or receivable by providers of nursing facility services
on and after October 1, 2015, and shall again be decreased to five and one-half
percent of the gross receipts received or receivable by providers of nursing
services after June 30, 2016.
(c) Definitions.
?
(1) ?Gross receipts? means the amount
received or receivable, whether in cash or in kind, from patients, third-party
payors and others for nursing facility services furnished by the provider,
including retroactive adjustments under reimbursement agreements with third-party
payors, without any deduction for any expenses of any kind: Provided, That
accrual basis providers are allowed to reduce gross receipts by their bad
debts, to the extent the amount of those bad debts was previously included in
gross receipts upon which the tax imposed by this section was paid.
(2) ?Nursing facility services? means
those services that are nursing facility services for purposes of ?1903(w) of
the Social Security Act.
(d) Effective
date. ? The tax imposed by this section applies to gross receipts received
or receivable by providers after May 31, 1993.
chapter 16. public health.
ARTICLE 2D.
CERTIFICATE OF NEED.
?16-2D-2. Definitions.
As used in this article:
(1) ?Affected person? means:
(A) The applicant;
(B) An agency or organization representing
consumers;
(C) An individual residing within the
geographic area but within this state served or to be served by the applicant;
(D) An individual who regularly uses
the health care facilities within that geographic area;
(E) A health care facility located
within this state which provide services similar to the services of the
facility under review and which will be significantly affected by the proposed
project;
(F) A health care facility located
within this state which, before receipt by the authority of the proposal being
reviewed, have has formally indicated an intention to provide
similar services within this state in the future;
(G) Third-party payors who reimburse
health care facilities within this state; similar to those proposed for services
or
(H) An agency that establishes rates
for health care facilities within this state similar to those proposed; or
(I) (H) An organization representing health care providers;
(2) ?Ambulatory health care facility?
means a facility that provides health services to noninstitutionalized and
nonhomebound persons on an outpatient basis;
(3) ?Ambulatory surgical facility?
means a facility not physically attached to a health care facility that
provides surgical treatment to patients not requiring hospitalization;
(4) ?Applicant? means a person proposing
a proposed health service applying for a certificate of need, exemption
or determination of review;
(5) ?Authority? means the West Virginia
Health Care Authority as provided in article twenty-nine-b of this chapter;
(6) ?Bed capacity? means the number of
beds licensed to a health care facility or the number of adult and pediatric
beds permanently staffed and maintained for immediate use by inpatients in
patient rooms or wards in an unlicensed facility;
(7) ?Behavioral health services? means
services provided for the care and treatment of persons with mental illness or
developmental disabilities; in an inpatient or outpatient setting
(8) ?Birthing center? means a
short-stay ambulatory health care facility designed for low-risk births
following normal uncomplicated pregnancy;
(9) ?Campus? means the adjacent grounds
and buildings, or grounds and buildings not separated by more than a public
right-of-way, of a health care facility;
(10) ?Capital expenditure? means:
(A) (i) An expenditure made by
or on behalf of a health care facility, which:
(i) (I) Under generally accepted accounting principles is not
properly chargeable as an expense of operation and maintenance; or
(ii) (II) Is made to obtain either by lease or comparable
arrangement any facility or part thereof or any equipment for a facility or
part; and
(B)(i) (ii) (I) Exceeds the
expenditure minimum;
(ii) (II) Is a substantial change to the bed capacity of the
facility with respect to which the expenditure is made; or
(iii) (III) Is a substantial change to the services of such
facility;
(C) (B) The transfer of equipment or facilities for less than fair
market value if the transfer of the equipment or facilities at fair market
value would be subject to review; or
(D) (C) A series of expenditures, if the sum total exceeds the
expenditure minimum and if determined by the state agency authority
to be a single capital expenditure subject to review. In making this
determination, the state agency authority shall consider: Whether
the expenditures are for components of a system which is required to accomplish
a single purpose; or whether the expenditures are to be made within a two-year
period within a single department such that they will constitute a significant
modernization of the department.
(11) ?Charges? means the economic value
established for accounting purposes of the goods and services a hospital
provides for all classes of purchasers;
(12) ?Community mental health and
intellectual disability facility? means a facility which provides comprehensive
services and continuity of care as emergency, outpatient, partial
hospitalization, inpatient or consultation and education for individuals with
mental illness, intellectual disability;
(13) ?Diagnostic imaging? means the use
of radiology, ultrasound, mammography,
(14) ?Drug and Alcohol Rehabilitation
Services? means a medically or psychotherapeutically supervised process for
assisting individuals on an inpatient or outpatient basis through the
processes of withdrawal from dependency on psychoactive substances;
(15) ?Expenditure minimum? means the
cost of acquisition, improvement, expansion of any facility, equipment, or
services including the cost of any studies, surveys, designs, plans, working
drawings, specifications and other activities, including staff effort and
consulting at and above $5 million;
(16) ?Health care facility? means a
publicly or privately owned facility, agency or entity that offers or provides
health services, whether a for-profit or nonprofit entity and whether or not
licensed, or required to be licensed, in whole or in part;
(17) ?Health care provider? means a
person authorized by law to provide professional health service services
in this state to an individual;
(18) ?Health services? means clinically
related preventive, diagnostic, treatment or rehabilitative services;
(19) ?Home health agency? means an
organization primarily engaged in providing professional nursing services
either directly or through contract arrangements and at least one of the
following services:
(A) Home health aide services;
(B) Physical therapy;
(C) Speech therapy;
(D) Occupational therapy;
(E) Nutritional services; or
(F) Medical social services to persons
in their place of residence on a part-time or intermittent basis.
(20) ?Hospice? means a coordinated
program of home and inpatient care provided directly or through an agreement
under the direction of a licensed hospice program which provides palliative and
supportive medical and other health services to terminally ill individuals and
their families.
(21) ?Hospital? means a facility
licensed pursuant to the provisions of article five-b of this chapter and any
acute care facility operated by the state government, that primarily provides
inpatient diagnostic, treatment or rehabilitative services to injured, disabled
or sick persons under the supervision of physicians.
(22) ?Intermediate care facility? means
an institution that provides health-related services to individuals with
conditions that require services above the level of room and board, but do not
require the degree of services provided in a hospital or skilled-nursing
facility.
(23) ?Like equipment? means medical
equipment in which functional and technological capabilities are similar to the
equipment being replaced; and the replacement equipment is to be used for the
same or similar diagnostic, therapeutic, or treatment purposes as currently in
use; and it does not constitute a substantial change in health service or a
proposed health service.
(24) ?Major medical equipment? means a
single unit of medical equipment or a single system of components with related
functions which is used for the provision of medical and other health services
and costs in excess of the expenditure minimum. This term does not include
medical equipment acquired by or on behalf of a clinical laboratory to provide
clinical laboratory services if the clinical laboratory is independent of a
physician?s office and a hospital and it has been determined under Title XVIII
of the Social Security Act to meet the requirements of paragraphs ten and
eleven, Section 1861(s) of such act, Title 42 U.S.C. ?1395x. In determining
whether medical equipment is major medical equipment, the cost of studies,
surveys, designs, plans, working drawings, specifications and other activities
essential to the acquisition of such equipment shall be included. If the
equipment is acquired for less than fair market value, the term ?cost? includes
the fair market value.
(25) ?Medically underserved population?
means the population of an area designated by the authority as having a
shortage of a specific health service.
(26) ?Nonhealth-related project? means
a capital expenditure for the benefit of patients, visitors, staff or employees
of a health care facility and not directly related to health services offered
by the health care facility.
(27) ?Offer? means the health care
facility holds itself out as capable of providing, or as having the means to
provide, specified health services.
(28) ?Opioid treatment program?
means as that term is defined in article five-y of chapter sixteen.
(28) (29) ?Person? means an individual, trust, estate, partnership,
limited liability corporation, committee, corporation, governing body,
association and other organizations such as joint-stock companies and insurance
companies, a state or a political subdivision or instrumentality thereof or any
legal entity recognized by the state.
(29) (30) ?Personal care agency? means an entity that
provides personal care services approved by the Bureau of Medical Services.
(30) (31) ?Personal care services? means personal hygiene;
dressing; feeding; nutrition; environmental support and health-related tasks
provided by a personal care agency.
(31) (32) ?Physician? means an individual who is licensed practice
allopathic medicine by the board of Medicine or licensed to practice
osteopathic medicine by the board of Osteopathy to practice in West
Virginia Osteopathic Medicine.
(32) (33) ?Proposed health service? means any service as described
in section eight of this article.
(33) (34) ?Purchaser? means an individual who is directly or
indirectly responsible for payment of patient care services rendered by a
health care provider, but does not include third-party payers.
(34) (35) ?Rates? means charges imposed by a health care facility
for health services.
(35) (36) ?Records? means accounts, books and other data related to
health service costs at health care facilities subject to the provisions of
this article which do not include privileged medical information, individual
personal data, confidential information, the disclosure of which is prohibited
by other provisions of this code and the laws enacted by the federal
government, and information, the disclosure of which would be an invasion of
privacy
(36) (37) ?Rehabilitation facility? means an inpatient facility licensed
in West Virginia operated for the primary purpose of assisting in the
rehabilitation of disabled persons through an integrated program of medical and
other services.
(37) (38) ?Related organization? means an organization, whether
publicly owned, nonprofit, tax-exempt or for profit, related to a health care
facility through common membership, governing bodies, trustees, officers, stock
ownership, family members, partners or limited partners, including, but not
limited to, subsidiaries, foundations, related corporations and joint ventures.
For the purposes of this subdivision ?family members? means parents, children,
brothers and sisters whether by the whole or half blood, spouse, ancestors and
lineal descendants.
(39) ?Secretary? means the Secretary of
the West Virginia Department of Health and Human Resources;
(38) (40) ?Skilled nursing facility? means an institution, or a
distinct part of an institution, that primarily provides inpatient skilled
nursing care and related services, or rehabilitation services, to injured,
disabled or sick persons.
(39) (41) ?Standard?? means a health service guideline developed by
the authority and instituted under section six.
(40) (42) ?State health plan? means a document prepared by the
authority that sets forth a strategy for future health service needs in the
this state.
(41) (43) ?Substantial change to the bed capacity? of a health care
facility means any change, associated with a capital expenditure, that
increases or decreases the bed capacity or relocates beds from one physical
facility or site to another, but does not include a change by which a health
care facility reassigns existing beds. as swing beds between acute care and
long-term care categories or a decrease in bed capacity in response to federal
rural health initiatives
(43) (44) ?Substantial change to the health services? means:
(A) The addition of a health service
offered by or on behalf of the health care facility which was not offered by or
on behalf of the facility within the twelve-month period before the month in
which the service is was first offered; or
(B) The termination of a health service
offered by or on behalf of the facility but does not include the termination of
ambulance service, wellness centers or programs, adult day care or respite care
by acute care facilities.
(45) ?Telehealth? means the use of
electronic information and telecommunications technologies to support
long-distance clinical health care, patient and professional health-related
education, public health and health administration.
(44) (46) ?Third-party payor? means an individual, person,
corporation or government entity responsible for payment for patient care
services rendered by health care providers.
(45) (47) ?To develop? means to undertake those activities which
upon their completion will result in the offer of a proposed health service or
the incurring of a financial obligation in relation to the offering of such a
service.
?16-2D-3. Powers and duties of the
authority.
(a) The authority shall:
(1) Administer the certificate of need
program;
(2) Review the state health plan, the
certificate of need standards, and the cost effectiveness of the certificate of
need program and make any amendments and modifications to each that it may deem
necessary, no later than September 1, 2017, and biennially thereafter.
(3) Shall adjust the expenditure
minimum annually and publish to its website the updated amount on or before
December 31, of each year. The expenditure minimum adjustment shall be based on
the DRI inflation index. published in the Global Insight DRI/WEFA Health
Care Cost Review
(4) Create a standing advisory
committee to advise and assist in amending the state health plan, the
certificate of need standards, and performing the state agencies?
responsibilities.
(b) The authority may:
(1) (A) Order a moratorium upon the
offering or development of a health service when criteria and guidelines for
evaluating the need for the health service have not yet been adopted or are
obsolete or when it determines that the proliferation of the health service may
cause an adverse impact on the cost of health services or the health status of
the public.
(B) A moratorium shall be declared by a
written order which shall detail the circumstances requiring the moratorium.
Upon the adoption of criteria for evaluating the need for the health service
affected by the moratorium, or one hundred eighty days from the declaration of
a moratorium, whichever is less, the moratorium shall be declared to be over
and applications for certificates of need are processed pursuant to section
eight.
(2) Issue grants and loans to
financially vulnerable health care facilities located in underserved areas that
the authority and the Office of Community and Rural Health Services determine
are collaborating with other providers in the service area to provide cost
effective health services.
(3) (2) Approve an emerging health service or technology for one
year.
(4) (3)
Exempt from certificate of need or annual assessment requirements to
financially vulnerable health care facilities located in underserved areas that
the state agency and the Office of Community and Rural Health Services
determine are collaborating with other providers in the service area to provide
cost effective health services.
?16-2D-4. Rule-making Authority Rulemaking.
(a) The authority shall propose rules
for legislative approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code, to implement the following:
(1) Information a person shall provide
when applying for a certificate of need;
(2) Information a person shall provide
when applying for an exemption;
(3) Process for the issuance of grants
and loans to financially vulnerable health care facilities located in
underserved areas;
(4) The required Information a
person shall provide in a letter of intent;
(5) Process for an expedited
certificate of need;
(6) Determine medically underserved
population. The authority may consider unusual local conditions that are a
barrier to accessibility or availability of health services. The authority may
consider when making its determination of a medically underserved population
designated by the federal Secretary of Health and Human Services under Section
330(b)(3) of the Public Health Service Act, as amended, Title 42 U.S.C. ?254;
(7) Process to review an approved
certificate of need; and
(8) Process to review approved proposed
health services for which the expenditure maximum is exceeded or is expected to
be exceeded.
(b) The authority shall propose
emergency rules by December 31, 2016, to effectuate the changes to this article
(c) (b) All of the authority?s rules in effect and not in conflict
with the provisions of this article, shall remain in effect until they are
amended or rescinded.
?16-2D-5.
Fee; special revenue account; administrative fines.
(a)
All fees and other moneys, except administrative fines, received by the board
authority shall be deposited in a separate special revenue fund in the
State Treasury which is continued and shall be known as the ?Certificate of
Need Program Fund?. Expenditures from this fund shall be for the purposes set
forth in this article 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 three, chapter twelve of this code and upon
fulfillment of the provisions of article two, chapter eleven-b of this code: Provided, That for the fiscal year
ending June 30, 2017, expenditures are authorized from collections rather than
pursuant to appropriation by the Legislature.
(b) Any amounts received as
administrative fines imposed pursuant to this article shall be deposited into
the General Revenue Fund of the State Treasury.
?16-2D-8.
Proposed health services that require a certificate of need.
(a)
Except as provided in sections nine, ten and eleven of this article, the
following proposed health services may not be acquired, offered or developed
within this state except upon approval of and receipt of a certificate of need
as provided by this article:
(1)
The construction, development, acquisition or other establishment of a
health care facility;
(2)
The partial or total closure of a health care facility with which a capital
expenditure is associated;
(3)
(A) An obligation for a capital expenditure incurred by or on behalf of a
health care facility, in excess of the expenditure minimum; or
(B) An
obligation for a capital expenditure incurred by a person to acquire a health
care facility.
(4) An
obligation for a capital expenditure is considered to be incurred by or on
behalf of a health care facility:
(i) (A)
When a valid contract is entered into by or on behalf of the health care
facility for the construction, acquisition, lease or financing of a capital
asset;
(ii) (B)
When the health care facility takes formal action to commit its own funds for a
construction project undertaken by the health care facility as its own
contractor; or
(iii) (C)
In the case of donated property, on the date on which the gift is completed
under state law.
(5) A
substantial change to the bed capacity of a health care facility with which a
capital expenditure is associated;
(6)
The addition of ventilator services by a hospital;
(7)
The elimination of health services previously offered on a regular basis by or
on behalf of a health care facility which is associated with a capital
expenditure;
(8)
(A) A substantial change to the bed capacity or health services offered by or
on behalf of a health care facility, whether or not the change is associated
with a proposed capital expenditure;
(B) If
the change is associated with a previous capital expenditure for which a
certificate of need was issued; and
(C) If
the change will occur within two years after the date the activity which was
associated with the previously approved capital expenditure was undertaken.
(9)
The acquisition of major medical equipment;
(10) A
substantial change in an approved health service for which a certificate of
need is in effect;
(11)
An expansion of the service area for hospice or home health agency regardless
of the time period in which the expansion is contemplated or made; and
(12)
The addition of health services offered by or on behalf of a health care
facility which were not offered on a regular basis by or on behalf of the
health care facility within the twelve- month period prior to the time the
services would be offered.
(b)
The following health services are required to obtain a certificate of need
regardless of the minimum expenditure:
(1)
Constructing, developing, acquiring or establishing of a birthing center;
(2)
Providing radiation therapy;
(3)
Providing computed tomography;
(4)
Providing positron emission tomography;
(5)
Providing cardiac surgery;
(6)
Providing fixed magnetic resonance imaging;
(7)
Providing comprehensive medical rehabilitation;
(8)
Establishing an ambulatory care center;
(9)
Establishing an ambulatory surgical center;
(10)
Providing diagnostic imaging;
(11)
Providing cardiac catheterization services;
(12)
Constructing, developing, acquiring or establishing of kidney disease treatment
centers, including freestanding hemodialysis units;
(13)
Providing megavoltage radiation therapy;
(14)
Providing surgical services;
(15)
Establishing operating rooms;
(16)
Adding acute care beds;
(17)
Providing intellectual developmental disabilities services;
(18)
Providing organ and tissue transplants;
(19)
Establishing an intermediate care facility for individuals with intellectual
disabilities;
(20)
Providing inpatient services;
(21)
Providing hospice services;
(22)
Establishing a home health agency; and
(23)
Providing personal care services.
(c) A certificate of need
previously approved under this article remains in effect unless revoked by the
authority.
?16-2D-9. Health services that cannot
be developed.
Notwithstanding section eight and
eleven, these health services require a certificate of need but the authority
may not issue a certificate of need to:
(1) A health care facility adding
intermediate care or skilled nursing beds to its current licensed bed
complement, except as provided in subdivision twenty-three, subsection (c),
section eleven;
(2) A person developing, constructing
or replacing a skilled nursing facility except in the case of facilities
designed to replace existing beds in existing facilities that may soon be
deemed unsafe or facilities utilizing existing licensed beds from existing
facilities which are designed to meet the changing health care delivery system;
(3) Add beds in an intermediate
care facility for individuals with an intellectual disability, except that
prohibition does not apply to an intermediate care facility for individuals
with intellectual disabilities beds approved under the Kanawha County circuit
court order of August 3, 1989, civil action number MISC-81-585 issued in the
case of E.H. v. Matin, 168 W.V. 248, 284 S.E. 2d 232 (1981); and
(4) An opioid treatment facility or
program.
?16-2D-10. Exemptions from certificate
of need.
Notwithstanding section eight, a person
may provide the following health services without obtaining a certificate of
need or applying to the authority for approval:
(1) The creation of a private office of
one or more licensed health professionals to practice in this state pursuant to
chapter thirty of this code;
(2) Dispensaries and first-aid stations
located within business or industrial establishments maintained solely for the
use of employees that does not contain inpatient or resident beds for patients
or employees who generally remain in the facility for more than twenty-four
hours;
(3) A place that provides remedial care
or treatment of residents or patients conducted only for those who rely solely
upon treatment by prayer or spiritual means in accordance with the creed or
tenets of any recognized church or religious denomination;
(4) Telehealth;
(5) A facility owned or operated by one
or more health professionals authorized or organized pursuant to chapter thirty
or ambulatory health care facility which offers laboratory services or
diagnostic imaging to patients regardless of the cost associated with the
proposal. To qualify for this exemption seventy-five percent of the laboratory
services are for the patients of the practice or ambulatory health care
facility of the total laboratory services performed and seventy-five percent of
diagnostic imaging services are for the patients of the practice or ambulatory
health care facility of the total imaging services performed. The authority
may, at any time, request from the entity information concerning the number of
patients who have been provided laboratory services or diagnostic imaging;
(6) Notwithstanding the provisions of
section seventeen of this article, any hospital or healthcare facility that
holds a valid certificate of need issue pursuant to this article may transfer
that certificate of need to a person purchasing that hospital or healthcare
facility, or all or substantially all of its assets. Any substantial changes to
the capacity of services offered in that hospital or healthcare facility made
subsequent to that transaction would remain subject to the requirements for the
issuance of a certificate of need as otherwise set forth in this article. Any
person purchasing a hospital or healthcare facility, or all or substantially
all of its assets, that has applied for, or received, a certificate of need
prior to the changes made to this article during the 2017 Regular session of
the Legislature shall qualify for an exemption from certificate of need; and
(7) The acquisition of a hospital or
health care facility.
?16-2D-11. Exemptions from certificate
of need which require approval from the authority.
(a) To obtain an exemption under this
section a person shall:
(1) File an exemption application;
(2) Pay the $1,000 application fee; and
(3) Provide a statement detailing which
exemption applies and the circumstances justifying the approval of the
exemption.
(b) The authority has forty-five days
to review the exemption request. The authority may not hold an administrative
hearing to review the application. An affected party A person may
not file an objection to the request for an exemption. The applicant may
request or agree with the authority to a fifteen day extension of the
timeframe. If the authority does not approve or deny the application within
forty-five days, then the exemption is immediately approved. If the authority
denies the approval of the exemption, only the applicant may appeal the
authority?s decision to the Office of Judges or refile the application with the
authority. The Office of Judges shall follow the procedure provided in
section sixteen to perform the review
(c) Notwithstanding section eight and
ten and except as provided in section nine of this article, the Legislature
finds that a need exists and these health services are exempt from the
certificate of need process:
(1) A computed tomography scanner
that is installed in a private office practice where at minimum seventy-five
percent of the scans are for the patients of the practice and the fair market
value of the installation and purchase is less than $250,000 for calendar year
2016. The authority shall adjust the dollar amount specified in this
subdivision annually and publish an update of the amount on or before December
31, of each year. The adjustment of the dollar amount shall be based on the DRI
inflation index. published in the Global Insight DRI/WEFA Health Care Cost
Review The authority may at any time request from the private office practice
information concerning the number of patients who have been provided scans;
The acquisition and utilization of one
computed tomography scanner with a purchase price up to $750,000 that is
installed in a private office practice where at minimum seventy-five percent of
the scans are performed on the patients of the practice. The private office
practice shall obtain and maintain accreditation from the American College of
Radiology prior to, and at all times during, the offering of this service. The
authority may at any time request from the private office practice information
relating to the number of patients who have been provided scans and proof of
active and continuous accreditation from the American College of Radiology. If
a physician owns or operates a private office practice in more than one
location, this exemption shall only apply to the physician?s primary place of
business. If a physician wants to expand the offering of this service to
include more than one computed topography scanner, he or she shall be required
to obtain a certificate of need prior to expanding this service. All current
certificates of need issued for computed tomography services, with a required
percentage threshold of scans to be performed on patients of the practice in
excess of seventy-five percent, shall be reduced to seventy-five percent.??
(2) (A) A birthing center established
by a nonprofit primary care center that has a community board and
provides primary care services to people in their community without regard to
ability to pay; or
(B) A birthing center established by a
nonprofit hospital with less than one hundred licensed acute care beds.
(i) To qualify for this exemption, an
applicant shall be located in an area that is underserved with respect to
low-risk obstetrical services; and
(ii) Provide a proposed health service
area.
(3) (A) A health care facility
acquiring major medical equipment, adding health services or obligating a
capital expenditure to be used solely for research;
(B) To qualify for this exemption, the
health care facility shall show that the acquisition, offering or obligation
will not:
(i) Affect the charges of the facility
for the provision of medical or other patient care services other than the
services which are included in the research;
(ii) Result in a substantial change to
the bed capacity of the facility; or
(iii) Result in a substantial change to
the health services of the facility.
?(C) For purposes of this subdivision, the term
?solely for research? includes patient care provided on an occasional and
irregular basis and not as part of a research program;
(4) The obligation of a capital
expenditure to acquire, either by purchase, lease or comparable arrangement,
the real property, equipment or operations of a skilled nursing facility.
(5) Shared health services between two
or more hospitals licensed in West Virginia providing health services made
available through existing technology that can reasonably be mobile. This
exemption does not include providing mobile cardiac catheterization;
(6) The acquisition, development or
establishment of a certified interoperable electronic health record or
electronic medical record system;
(7) The addition of forensic beds in a
health care facility;
(8) A behavioral health service
selected by the Department of Health and Human Resources in response to its
request for application for services intended to return children currently
placed in out-of-state facilities to the state or to prevent placement of
children in out-of-state facilities is not subject to a certificate of need;
(9) The replacement of major medical
equipment with like equipment, only if the replacement major medical
equipment cost is more than the expenditure minimum;
(10) Renovations within a hospital, only
if the renovation cost is more than the expenditure minimum. The
renovations may not expand the health care facility?s current square footage,
incur a substantial change to the health services, or a substantial change to
the bed capacity;
(11) Renovations to a skilled nursing
facility;
(12) The construction, development,
acquisition or other establishment by a licensed West Virginia hospital
of an ambulatory heath care facility in the county in which it is located; and
in a contiguous county within or outside this state
(13) The donation of major medical
equipment to replace like equipment for which a certificate of need has been
issued and the replacement does not result in a substantial change to health
services. This exemption does not include the donation of major medical
equipment made to a health care facility by a related organization;
(14) A person providing specialized
foster care personal care services to one individual and those services are
delivered in the provider?s home;
(15) A hospital converting the use of
beds except a hospital may not convert a bed to a skilled nursing home bed and
conversion of beds may not result in a substantial change to health services
provided by the hospital;
(16) The construction, renovation,
maintenance or operation of a state owned veterans skilled nursing facilities
established pursuant to the provisions of article one-b of this chapter;
(17) A nonprofit community group
designated by a county to develop and operate a nursing home bed facility with
no more than thirty-six beds in any county in West Virginia that currently is
without a skilled nursing facility;
To develop and operate a skilled
nursing facility with no more than thirty-six beds in a county that currently
is without a skilled nursing facility. The beds may not be transferred or sold
until the skilled nursing facility has been in operation for at least ten
years;
(18) A critical access hospital,
designated by the state as a critical access hospital, after meeting all
federal eligibility criteria, previously licensed as a hospital and
subsequently closed, if it reopens within ten years of its closure;
(19) The establishing of a heath care
facility or offering of health services for children under one year of age
suffering from Neonatal Abstinence Syndrome;
(20) The construction, development,
acquisition or other establishment of community mental health and intellectual
disability facility;
(21) Providing behavioral health facilities
and services;
(22) The construction, development,
acquisition or other establishment of kidney disease treatment centers,
including freestanding hemodialysis units but only to a medically underserved
population;
(23) The transfer, or acquisition of
intermediate care or skilled nursing beds from an existing health care facility
to a nursing home providing intermediate care and skilled nursing services purchase
or sale of intermediate care or skilled nursing beds from a skilled nursing
facility or a skilled nursing unit of an acute care hospital to a skilled
nursing facility providing intermediate care and skilled nursing services. No
state agency may deny payment to an acquiring nursing home or place any
restrictions on the beds transferred under this subsection. The transferred
beds shall retain the same certification status that existed at the nursing
home or hospital skilled nursing unit from which they were acquired. If
construction is required to place the transferred beds into the acquiring
nursing home, the acquiring nursing home has one year from the date of purchase
to commence construction;
(24) The construction, development,
acquisition or other establishment by a health care facility of a nonhealth
related project, only if the nonhealth related project cost is more than the
expenditure minimum;
(25) A facility owned or operated by
one or more health professionals authorized or organized pursuant to chapter
thirty or ambulatory health care facility which offers laboratory or imaging
services to patients regardless of the cost associated with the proposal. To
qualify for this exemption seventy five percent of the laboratory services are
for the patients of the practice or ambulatory health care facility of the total
laboratory services performed and seventy-five percent of imaging services are
for the patients of the practice or ambulatory health care facility of the
total imaging services performed;
(26) (25) The construction, development, acquisition or other establishment
of an alcohol or drug treatment facility and drug and alcohol treatment
services unless the construction, development, acquisition or other
establishment is an opioid treatment facility or programs as set forth in
subdivision (4) of section nine of this article;
(27) (26) Assisted living facilities and services; and
(28) (27) The creation, construction, acquisition or expansion of a
community-based nonprofit organization with a community board that provides or
will provide primary care services to people without regard to ability to pay
and receives approval from the Health Resources and Services Administration.
?16-2D-13. Procedures for certificate
of need reviews.
(a) An application for a certificate of
need shall be submitted to the authority prior to the offering or development
developing of a proposed health service.
(b) A person proposing a proposed
health service shall:
(1) Submit a letter of intent ten days
prior to submitting the certificate of need application. If the tenth day
falls on a weekend or holiday, the certificate of need application shall be
filled on the next business day. The information required within the letter
of intent shall be detailed by the authority in legislative rule;
(2) Submit the appropriate application
fee;
(A) Up to $1,500,000 a fee of
$1,500.00;
(B) From $1,500,001 to $ 5,000,000 a
fee of $5,000.00;
(C) From $5,000,001 to 25,000,000 a fee
of $25,000.00; and
(D) From $25,000,001 and above a fee of
$35,000.00.
(3) Submit to the Director of the
Office of Insurance Consumer Advocacy a copy of the application;
(c) The authority shall determine if
the submitted application is complete within ten days of receipt of the
application. The authority shall provide written notification to the applicant
of this determination. If the authority determines an application to be
incomplete, the authority may request additional information from the
applicant.
(d) Within five days of receipt of a
letter of intent, the authority shall provide notification to the public
through a newspaper of general circulation in the area where the health service
is being proposed and by placing of copy of the letter of intent on its
website. The newspaper notice shall contain a statement that, further
information regarding the application is on the authority?s web site.
(e) The authority may batch completed
applications for review on the fifteenth day of the month or the last day of
month in which the application is deemed complete.
(f) When the application is submitted,
ten days after filing the letter of intent, the application shall be placed on
the authority?s website.
(g) An affected party has thirty days
starting from the date the application is batched to request the authority hold
an administrative hearing.
?(1) A hearing order shall be approved by the
authority within fifteen days from the last day an affected person may requests
an administrative hearing on a certificate of need application.
(2) A hearing shall take place no later
than three months from that date the hearing order was approved by the
authority.
(3) The authority shall conduct the
administrative hearing in accordance with administrative hearing requirements
in section twelve, article twenty-nine-b of this chapter and article
five, chapter twenty-nine-a of this code.
(4) In the administrative hearing an
affected person has the right to be represented by counsel and to present oral
or written arguments and evidence relevant to the matter which is the subject
of the public hearing. An affected person may conduct reasonable questioning of
persons who make factual allegations relevant to its certificate of need
application.
(5) The authority shall maintain a
verbatim record of the administrative hearing.
(6) After the commencement of the
administrative hearing on the application and before a decision is made with
respect to it, there may be no ex parte contacts between:
(A) The applicant for the certificate
of need, any person acting on behalf of the applicant or holder of a
certificate of need or any person opposed to the issuance of a certificate for
the applicant; and
(B) Any person in the authority who
exercises any responsibility respecting the application.
(7) The authority may not impose fees
to hold the administrative hearing.
(8) The authority shall render a
decision within forty-five days of the conclusion of the administrative
hearing.
(h) If an administrative hearing is not
conducted during the review of an application, the authority shall provide a
file closing date five days after an affected party may no longer request an
administrative hearing, after which date no other factual information or
evidence may be considered in the determination of the application for the
certificate of need. A detailed itemization of documents in the authority?s
file on a proposed health service shall, on request, be made available by the
authority at any time before the file closing date.
(i) The extent of additional
information received by the authority from the applicant for a certificate of
need after a review has begun on the applicant?s proposed health service, with
respect to the impact on the proposed health service and additional information
which is received by the authority from the applicant, may be cause for the
authority to determine the application to be a new proposal, subject to a new
review cycle.
(j) The authority shall have five days
to provide the written status update upon written request by the applicant or
an affected person. The status update shall include the findings made in the
course of the review and any other appropriate information relating to the
review.
(k) (1) The authority shall annually
prepare and publish to its website, a status report of each ongoing and
completed certificate of need application reviews.
(2) For a status report of an ongoing
review, the authority shall include in its report all findings made during the
course of the review and any other appropriate information relating to the
review.
(3) For a status report of a completed
review, the authority shall include in its report all the findings made during
the course of the review and its detailed reasoning for its final decision.
(l) The authority shall provide for
access by the public to all applications reviewed by the authority and to all
other pertinent written materials essential to agency review.
?16-2D-15.
Agency Authority to render final decision; issue certificate of
need; write findings; specify capital expenditure maximum.
(a)
The authority shall render a final decision on an application for a certificate
of need in the form of an approval, a denial or an approval with conditions.
The final decision with respect to a certificate of need shall be based solely
on:
(1)
The authority?s review conducted in accordance with procedures and criteria in
this article and the certificate of need standards; and
(2)
The record established in the administrative hearing held with respect to the
certificate of need.
(b)
Approval with conditions does not give the authority the ability to mandate a
health service not proposed by the health care facility. Issuance of a
certificate of need or exemption may not be made subject to any condition
unless the condition directly relates to criteria in this article, or in the
certificate of need standards. Conditions may be imposed upon the operations of
the health care facility for not longer than a three-year period.
(c)
The authority shall send its decision along with written findings to the person
proposing the proposed health service or exemption and shall make it available
to others upon request.
(d) In
the case of a final decision to approve or approve with conditions a proposal
for a proposed health service, the authority shall issue a certificate of need
to the person proposing the proposed health service.
(e) The authority shall
specify in the certificate of need the maximum amount of capital expenditures
which may be obligated. The authority shall adopt legislative rules pursuant to
section four to prescribe the method used to determine capital expenditure
maximums and a process to review the implementation of an approved certificate
of need for a proposed health service for which the capital expenditure maximum
is exceeded or is expected to be exceeded.
?16-2D-16. Appeal of certificate of
need a decision.
(a) The authority?s final decision
shall upon request of an affected person be reviewed by the Office of Judges
An applicant or an affected person may appeal the authority?s final decision
in a certificate of need review to the Office of Judges. The request shall
be received within thirty days after the date of the authority?s decision. The
appeal hearing shall commence within thirty days of receipt of the request.
(b) The Office of Judges shall conduct
its proceedings in conformance with the West Virginia Rules of Civil Procedure
for trial courts of record and the local rules for use in the civil courts of
Kanawha County and shall review appeals in accordance with the provisions
governing the judicial review of contested administrative cases in article
five, chapter twenty-nine-a of this code.
(c) The decision of the Office of
Judges shall be made in writing within forty-five days after the conclusion of
the hearing.
(d) The written findings of the Office
of Judges shall be sent to the person who requested the review appeal,
to the person proposing the proposed health service and to the authority, and
shall be made available by the authority to others upon request.
(e) The decision of the Office of
Judges shall be considered the final decision of the authority; however, the
Office of Judges may remand the matter to the authority for further action or
consideration.
(f) Upon the entry of a final decision
by the Office of Judges, a person adversely an affected by the
review person may within thirty days after the date of the decision
of the review agency Office of Judges make an appeal in the
circuit court of Kanawha County. The decision of the Office of Judges shall be
reviewed by the circuit court in accordance with the provisions for the
judicial review of administrative decisions contained in article five, chapter
twenty-nine-a of this code.
ARTICLE 5B.
HOSPITALS AND SIMILAR INSTITUTIONS.
?16-5B-17. Healthcare-associated
infection reporting.
(a) As used in this section, the
following words mean:
(1) ?Centers for Disease Control and
Prevention? or ?CDC? means the United States Department of Health and Human
Services Centers for Disease Control and Prevention;
(2) ?National Healthcare Safety
Network? or ?NHSN? means the secure Internet-based data collection surveillance
system managed by the Division of Healthcare Quality Promotion at the CDC,
created by the CDC for accumulating, exchanging and integrating relevant
information on infectious adverse events associated with healthcare delivery.
(3) ?Hospital? means hospital as that
term is defined in subsection-e, section three, article twenty-nine-b, chapter
sixteen.
(4) ?Healthcare-associated infection?
means a localized or systemic condition that results from an adverse reaction
to the presence of an infectious agent or a toxin of an infectious agent that
was not present or incubating at the time of admission to a hospital.
(5) ?Physician? means a person licensed
to practice medicine by either the board of Medicine or the board of
osteopathy.
(6) ?Nurse? means a person licensed in
West Virginia as a registered professional nurse in accordance with article
seven, chapter thirty.
(b) The West Virginia Health Care
Authority Secretary of the Department of Health and Human Resources
is hereby directed to create an Infection Control Advisory Panel whose duty is
to provide guidance and oversight in implementing this section. The advisory
panel shall consist of the following members:
(1) Two board-certified or
board-eligible physicians, affiliated with a West Virginia hospital or medical
school, who are active members of the Society for Health Care Epidemiology of
America and who have demonstrated an interest in infection control;
(2) One physician who maintains active
privileges to practice in at least one West Virginia hospital;
(3) Three infection control
practitioners, two of whom are nurses, each certified by the Certification
Board of Infection Control and Epidemiology, and each working in the area of
infection control. Rural and urban practice must be represented;
(4) A statistician with an advanced
degree in medical statistics;
(5) A microbiologist with an advanced
degree in clinical microbiology;
(6) The Director of the Division of
Disease Surveillance and Disease Control in the Bureau for Public Health or a
designee; and
(7) The director of the hospital
program in the office of health facilities, licensure and certification in the
Bureau for Public Health.
(c) The advisory panel shall:
(1) Provide guidance to hospitals in
their collection of healthcare-associated infections;
(2) Provide evidence-based practices in
the control and prevention of healthcare associated infections;
(3) Establish reasonable goals to
reduce the number of healthcare-associated infections;
(4) Develop plans for analyzing
infection-related data from hospitals;
(5) Develop healthcare-associated
advisories for hospital distribution;
(6) Review and recommend to the West
Virginia Health Care Authority Secretary of the Department of Health and
Human Resources the manner in which the reporting is made available to the
public to assure that the public understands the meaning of the report; and
(7) Other duties as identified by the West
Virginia Health Care Authority Secretary of the Department of Health and
Human Resources.
(d) Hospitals shall report information
on healthcare-associated infections in the manner prescribed by the CDC
National Healthcare Safety Network(NHSN). The reporting standard prescribed by
the CDC National Healthcare Safety Network(NHSN) as adopted by the West
Virginia Health Care Authority shall be the reporting system of the
hospitals in West Virginia.
(e) Hospitals who fail to report
information on healthcare associated infections in the manner and time frame
required by the West Virginia Health Care Authority Secretary of the
Department of Health and Human Resources shall be fined the sum of $5,000
for each such failure.
(f) The Infection Control Advisory
Panel shall provide the results of the collection and analysis of all hospital
data to the West Virginia Health Care Authority Secretary of the
Department of Health and Human Resources for public availability and the
Bureau for Public Health for consideration in their hospital oversight and
epidemiology and disease surveillance responsibilities in West Virginia.
(g) Data collected and reported
pursuant to this act may not be considered to establish standards of care for
any purposes of civil litigation in West Virginia.
(h) The West Virginia Health Care
Authority shall report no later than January 15 of each year to the Legislative
Oversight committee on health and human resources accountability, beginning in
the year 2011. This yearly report shall include a summary of the results of the
required reporting and the work of the advisory panel
(i) (h) The West Virginia Health Care Authority Secretary
of the Department of Health and Human Resources shall require that all
hospitals implement and initiate this reporting requirement no later than
July 1, 2009.
ARTICLE 29B.
HEALTH CARE AUTHORITY.
?16-29B-2. Short
title.
This article may be cited as the ?West Virginia Health Care
Authority?.
?16-29B-2. Effective Date.
Effective the first day of July, 2017, all powers, duties and
functions of the West Virginia Health Care Authority shall be transferred to
the West Virginia Department of Health and Human Resources. ?
?16-29B-3. Definitions.
Definitions of words and terms defined
in articles two-d and five-f of this chapter are incorporated in this section
unless this section has different definitions.
As used in this article, unless a
different meaning clearly appears from the context:
(a) ?Authority? means the Health Care
Authority created pursuant to the provisions of this article;
(b) ?Board? means the five-member board
of directors of the West Virginia Health Care Authority;
(a) (c) ?Charges? means the economic value established for
accounting purposes of the goods and services a hospital provides for all
classes of purchasers;
(b) (d) ?Class of purchaser? means a group of potential hospital
patients with common characteristics affecting the way in which their hospital
care is financed. Examples of classes of purchasers are Medicare beneficiaries,
welfare recipients, subscribers of corporations established and operated
pursuant to article twenty-four, chapter thirty-three of this code, members of
health maintenance organizations and other groups as defined by the board
authority;
(c) ?Board? means the three-member
board of directors of the West Virginia Health Care Authority, an autonomous
division within the State Department of Health and Human Resources
(e) ?Executive Director? or ?Director?
means the administrative head of the Health Care Authority as set forth in
section five-a of this article;
(d) (f) ?Health care provider? means a person, partnership,
corporation, facility, hospital or institution licensed, certified or
authorized by law to provide professional health care service in this state to
an individual during this individual?s medical, remedial, or behavioral health
care, treatment or confinement. For purposes of this article, ?health care
provider? shall not include the private office practice of one or more health
care professionals licensed to practice in this state pursuant to the
provisions of chapter thirty of this code;
(e) (g) ?Hospital? means a facility subject to licensure as such
under the provisions of article five-b of this chapter, and any acute care
facility operated by the state government which is primarily engaged in
providing to inpatients, by or under the supervision of physicians, diagnostic
and therapeutic services for medical diagnosis, treatment and care of injured,
disabled or sick persons, and does not include state mental health facilities
or state long-term care facilities;
(f) (h) ?Person? means an individual, trust, estate, partnership,
committee, corporation, association or other organization such as a joint stock
company, a state or political subdivision or instrumentality thereof or any
legal entity recognized by the state;
(g) (i) ?Purchaser? means a consumer of patient care services, a
natural person who is directly or indirectly responsible for payment for such
patient care services rendered by a health care provider, but does not include
third-party payers;
(h) (j) ?Rates? means all value given or money payable to health
care providers for health care services, including fees, charges and cost
reimbursements;
(i) (k) ?Records? means accounts, books and other data related to
health care costs at health care facilities subject to the provisions of this
article which do not include privileged medical information, individual
personal data, confidential information, the disclosure of which is prohibited
by other provisions of this code and the laws enacted by the federal
government, and information, the disclosure of which would be an invasion of
privacy;
(l) ?Related organization? means an
organization, whether publicly owned, nonprofit, tax-exempt or for profit,
related to a health care provider through common membership, governing bodies,
trustees, officers, stock ownership, family members, partners or limited
partners including, but not limited to, subsidiaries, foundations, related
corporations and joint ventures. For the purposes of this subsection family
members means brothers and sisters, whether by the whole or half blood, spouse,
ancestors and lineal descendants;
(m) ?Secretary? means the Secretary of
the Department of Health and Human Resources; and
(j) (n) ?Third-party payor? means any natural person, person,
corporation or government entity responsible for payment for patient care
services rendered by health care providers.
(k) ?Related organization? means an
organization, whether publicly owned, nonprofit, tax-exempt or for profit,
related to a health care provider through common membership, governing bodies,
trustees, officers, stock ownership, family members, partners or limited
partners including, but not limited to, subsidiaries, foundations, related
corporations and joint ventures. For the purposes of this subsection family
members shall mean brothers and sisters, whether by the whole or half blood,
spouse, ancestors and lineal descendants
?16-29B-5. West Virginia Health Care
Authority; composition of the board; qualifications; terms; oath; expenses of
members; vacancies; appointment of chairman, and meetings of the board.
(a) The ?West Virginia Health Care Cost Review Authority? is
continued as an autonomous a division of the Department of Health
and Human Resources and shall be known as the ?West Virginia Health Care
Authority?, hereinafter referred to as the authority or the board. Any
references in this code to the West Virginia Health Care Cost Review Authority
means the West Virginia Health Care Authority.
(b) There is created a board of review
to serve as the adjudicatory body of the authority and shall conduct all
hearings as required in this article, article two-d of this chapter.
(a) (1) The board shall consist of three five
members, appointed by the Governor, with the advice and consent of the
Senate. The board members are not permitted to hold political office in
the government of the state either by election or appointment while serving as
a member of the board. The board members are not eligible for civil service
coverage as provided in section four, article six, chapter twenty-nine of this
code. The board members shall be citizens and residents of this state.
(2) No more than two three of the board members may be
members of the same political party. One board member shall have a background
in health care finance or economics, one board member shall have previous
employment experience in human services, business administration or
substantially related fields, one board member shall have previous
experience in the administration of a health care facility, one board member
shall have previous experience as a provider of health care services, and
one board member shall be a consumer of health services with a demonstrated
interest in health care issues.
(3) Each member appointed by the
Governor shall serve staggered terms of six years. Any member whose term has
expired shall serve until his or her successor has been appointed. Any person
appointed to fill a vacancy shall serve only for the unexpired term. Any member
shall be eligible for reappointment. In cases of vacancy in the office of
member, such vacancy shall be filled by the Governor in the same manner as the
original appointment.
(b) (4) Each board member 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 the State of West Virginia, which oath shall
be filed in the office of the Secretary of State.
(5) The Governor shall designate one of the board members to serve as
chairman at the Governor?s will and pleasure. The chairman shall be the
chief administrative officer of the board.
(6) The Governor may remove any board member only for incompetency, neglect
of duty, gross immorality, malfeasance in office or violation of the provisions
of this article. Appointments are for terms of six years, except that an
appointment to fill a vacancy shall be for the unexpired term only
(c) (7) No person while in the employ of, or holding any official
relation to, any hospital or health care provider subject to the provisions of
this article, or who has any pecuniary interest in any hospital or health care
provider, may serve as a member of the board or as an employee of the board.
Nor may any board member be a candidate for or hold public office or be a
member of any political committee while acting as a board member; nor may any
board member or employee of the board receive anything of value, either
directly or indirectly, from any third-party payor or health care provider. If
any of the board members become a candidate for any public office or for
membership on any political committee, the Governor shall remove the board
member from the board and shall appoint a new board member to fill the vacancy
created. No board member or former board member may accept employment with any
hospital or health care provider subject to the jurisdiction of the board in
violation of the West Virginia governmental ethics act, chapter six-b of this
code: Provided, That the act shall may not apply to
employment accepted after termination of the board.
(d) (8) The concurrent judgment of two three of the
board members when in session as the board shall be considered the
action of the board. A vacancy in the board shall does not affect
the right or duty of the remaining board members to function as a board.
(9) Each member of the board
shall serve without compensation, but shall receive expense reimbursement for
all reasonable and necessary expenses actually incurred in the performance of
the duties of the office, in the same amount paid to members of the Legislature
for their interim duties as recommended by the citizens legislative
compensation commission and authorized by law. No member may be reimbursed for
expenses paid by a third party.
?16-29B-5a. Executive Director of the
authority; powers and duties.
(a) The Secretary shall appoint an
executive director of the authority to supervise and direct the fiscal and
administrative matters of the authority. This person shall be qualified by
training and experience to direct the operations of the authority. The
executive director is ineligible for civil service coverage as provided in
section four, article six, chapter twenty-nine of this code and serves at the
will and pleasure of the Secretary.
(b) The executive director shall:
(1) Serve on a full-time basis and may
not be engaged in any other profession or occupation;
(2) Not hold political office in the
government of the state either by election or appointment while serving as
executive director;
(3) Shall be a citizen of the United
States and shall become a citizen of the state within ninety days of
appointment; and
(4) Report to the Secretary.
(c) The executive director has other
powers and duties as set forth in this article.
?16-29B-8. Powers generally; budget
expenses of the board authority.
(a) In addition to the powers granted to the board authority
elsewhere in this article, the board authority may:
(1) Adopt, amend and repeal necessary,
appropriate and lawful policy guidelines, and in cooperation with the
Secretary, propose rules in accordance with article three, chapter
twenty-nine-a of this code; Provided,
That subsequent amendments and modifications to any rule promulgated pursuant
to this article and not exempt from the provisions of article three, chapter
twenty-nine-a of this code may be implemented by emergency rule
(2) Hold public hearings, conduct
investigations and require the filing of information relating to matters
affecting the costs of health care services subject to the provisions of this
article and may subpoena witnesses, papers, records, documents and all other
data in connection therewith. The board may administer oaths or affirmations in
any hearing or investigation;
(3) Apply for, receive and accept
gifts, payments and other funds and advances from the United States, the state
or any other governmental body, agency or agencies or from any other private or
public corporation or person (with the exception of hospitals subject to the
provisions of this article, or associations representing them, doing business
in the State of West Virginia, except in accordance with subsection (c) of this
section), and enter into agreements with respect thereto, including the
undertaking of studies, plans, demonstrations or projects. Any such gifts or
payments that may be received or any such agreements that may be entered into
shall be used or formulated only so as to pursue legitimate, lawful purposes of
the board and shall in no respect inure to the private benefit of a board
member, staff member, donor or contracting party;
(4) Lease, rent, acquire, purchase,
own, hold, construct, equip, maintain, operate, sell, encumber and assign
rights or dispose of any property, real or personal, consistent with the
objectives of the board as set forth in this article: Provided, That such acquisition or purchase of real property or
construction of facilities shall be consistent with planning by the state
building commissioner and subject to the approval of the Legislature
(5) Contract and be contracted with and
execute all instruments necessary or convenient in carrying out the board?s
functions and duties;
and
(6) (4) Exercise, subject to limitations or restrictions herein
imposed, all other powers which are reasonably necessary or essential to effect
the express objectives and purposes of this article.
(b) The board shall annually prepare a
budget for the next fiscal year for submission to the Governor and the
Legislature which shall include all sums necessary to support the activities of
the board and its staff
(c) Each hospital subject to the
provisions of this article shall be assessed by the board on a pro rata basis
using the net patient revenue, as defined under generally accepted accounting principles,
of each hospital as reported under the authority of section eighteen of this
article as the measure of the hospital?s obligation. The amount of such fee
shall be determined by the board except that in no case shall the hospital?s
obligation exceed one-tenth of one percent of its net patient revenue. Such
fees shall be paid on or before the first day of July in each year and shall be
paid into the State Treasury and kept as a special revolving fund designated
?Health Care Cost Review Fund?, with the moneys in such fund being expendable
after appropriation by the Legislature for purposes consistent with this
article. Any balance remaining in said fund at the end of any fiscal year shall
not revert to the treasury, but shall remain in said fund and such moneys shall
be expendable after appropriation by the Legislature in ensuing fiscal years.
(d) Each hospital?s assessment shall be
treated as an allowable expense by the board.
(e) The board is empowered to withhold
rate approvals certificates of need and rural health system loans and grants if
any such fees remain unpaid, unless exempted under subsection (g), section
four, article two-d of this chapter.
?16-29B-12. Certificate of need
hearings; administrative procedures act applicable; hearings examiner;
subpoenas.
(a)
The board may shall conduct such hearings as it deems necessary
for the performance of its functions and shall hold hearings when required by
the provisions of this chapter or upon a written demand therefor by a
person aggrieved by any act or failure to act by the board regulation or order
of the board. All hearings of the board pursuant to this section shall
be announced in a timely manner and shall be open to the public except as
may be necessary to conduct business of an executive nature. In making
decisions in the certificate of need process, the board shall be guided by the
state health plan approved by the Governor.
(b) All
pertinent provisions of article five, chapter twenty-nine-a of this code shall
apply to and govern the hearing and administrative procedures in connection
with and following the hearing except as specifically stated to the contrary in
this article. General counsel for Department of Health and Human Resources
or general counsel for the authority shall represent the interest of the
authority at all hearings.
(c) Any
hearing may be conducted by members of the board or by a hearing examiner
appointed by the board for such purpose. Any member The
chairperson of the board may issue subpoenas and subpoenas duces tecum
which shall be issued and served pursuant to the time, fee and enforcement
specifications in section one, article five, chapter twenty-nine-a of this
code.
(d)
Notwithstanding any other provision of state law, when a hospital alleges that
a factual determination made by the board is incorrect, the burden of proof
shall be on the hospital to demonstrate that such determination is, in light of
the total record, not supported by substantial evidence. The burden of proof
remains with the hospital in all cases.
(e) After
any hearing, after due deliberation, and in consideration of all the testimony,
the evidence and the total record made, the board shall render a decision in
writing. The written decision shall be accompanied by findings of fact and
conclusions of law as specified in section three, article five, chapter
twenty-nine-a of this code, and the copy of the decision and accompanying
findings and conclusions shall be served by certified mail, return receipt
requested, upon the party demanding the hearing, and upon its attorney of
record, if any.
(f) Any
interested individual, group or organization shall be recognized as affected
parties upon written request from the individual, group or organization.
Affected parties shall have the right to bring relevant evidence before the
board and testify thereon. Affected parties shall have equal access to records,
testimony and evidence before the board and shall have equal access to the
expertise of the board?s authority?s staff. The board authority,
with the approval of the secretary, shall have authority to develop propose
rules and regulations to administer provisions of this section.
(g) The
A decision of the board is final unless reversed, vacated or modified
upon judicial review thereof, in accordance with the provisions of section
thirteen of this article.
?16-29B-26.
Exemptions from state antitrust laws.
(a) Actions of the board authority shall be exempt from
antitrust action under state and federal antitrust laws. Any actions of
hospitals and health care providers under the board?s authority?s
jurisdiction, when made in compliance with orders, directives, rules, approvals
or regulations issued or promulgated by the board authority,
shall likewise be exempt.
(b) It is the intention of the Legislature that this chapter shall also
immunize cooperative agreements approved and subject to supervision by the
authority and activities conducted pursuant thereto from challenge or scrutiny
under both state and federal antitrust law: Provided, That a cooperative
agreement that is not approved and subject to supervision by the authority
shall not have such immunity.
?16-29B-28. Review of
Cooperative agreements.
(a) Definitions. ? As used in this section the following terms have the
following meanings:
(1) ?Academic medical
center? means an accredited medical school, one or more faculty practice plans
affiliated with the medical school or one or more affiliated hospitals which
meet the requirements set forth in 42 C. F. R. 411.355(e).
(2) ?Accredited academic
hospital? means a hospital or health system that sponsor four or more approved
medical education programs.
(2) (3) ?Cooperative
agreement? means an agreement between a qualified hospital which is a member of
an academic medical center and one or more other hospitals or other health care
providers. The agreement shall provide for the sharing, allocation,
consolidation by merger or other combination of assets, or referral of
patients, personnel, instructional programs, support services and facilities or
medical, diagnostic, or laboratory facilities or procedures or other services
traditionally offered by hospitals or other health care providers.
(3) (4) ?Commercial
health plan? means a plan offered by any third party payor that negotiates with
a party to a cooperative agreement with respect to patient care services
rendered by health care providers.
(4) (5) ?Health care
provider? means the same as that term is defined in section three of this
article.
(5) (6) ?Teaching
hospital? means a hospital or medical center that provides
clinical education and training to future and current health professionals
whose main building or campus is located in the same county as the main campus
of a medical school operated by a state university.
(6) (7) ?Qualified
hospital? means a an academic medical center or teaching accredited
academic hospital, which meets the requirements of 42 C. F. R.
411.355(e) and which has entered into a cooperative agreement with one or
more hospitals or other health care providers but is not a critical access
hospital for purposes of this section.
(b) Findings. ?
(1) The Legislature finds
that the state?s schools of medicine, affiliated universities and teaching
hospitals are critically important in the training of physicians and other
healthcare providers who practice health care in this state. They provide
access to healthcare and enhance quality healthcare for the citizens of this
state.
(2) A medical education is
enhanced when medical students, residents and fellows have access to modern
facilities, state of the art equipment and a full range of clinical services
and that, in many instances, the accessibility to facilities, equipment and
clinical services can be achieved more economically and efficiently through a
cooperative agreement among a teaching qualified hospital and one
or more hospitals or other health care providers.
(c) Legislative purpose. ? The Legislature encourages cooperative
agreements if the likely benefits of such agreements outweigh any disadvantages
attributable to a reduction in competition. When a cooperative agreement, and
the planning and negotiations of cooperative agreements, might be
anticompetitive within the meaning and intent of state and federal antitrust
laws the Legislature believes it is in the state?s best interest to supplant
such laws with regulatory approval and oversight by the Health Care Authority
as set out in this article. The authority has the power to review, approve or
deny cooperative agreements, ascertain that they are beneficial to citizens of
the state and to medical education, to ensure compliance with the provisions of
the cooperative agreements relative to the commitments made by the qualified
hospital and conditions imposed by the Health Care Authority.
(d) Cooperative Agreements. ?
(1) A qualified
hospital which is a member of an academic medical center may negotiate
and enter into a cooperative agreement with other hospitals or health care
providers in the state:
(A) In order to enhance or
preserve medical education opportunities through collaborative efforts and to
ensure and maintain the economic viability of medical education in this state
and to achieve the goals hereinafter set forth; and
(B) When the likely benefits
outweigh any disadvantages attributable to a reduction in competition that may
result from the proposed cooperative agreement.
(2) The goal of any
cooperative agreement would be to:
(A) Improve access to care;
(B) Advance health status;
(C) Target regional health
issues;
(D) Promote technological
advancement;
(E) Ensure accountability
of the cost of care;
(F) Enhance academic
engagement in regional health;
(G) Preserve and improve
medical education opportunities;
(H) Strengthen the
workforce for health-related careers; and
(I) Improve health entity
collaboration and regional integration, where appropriate.
(3) A qualified hospital
located in this state may submit an application for approval of a proposed
cooperative agreement to the authority. The application shall state in detail
the nature of the proposed arrangement including the goals and methods for
achieving:
(A) Population health
improvement;
(B) Improved access to
health care services;
(C) Improved quality;
(D) Cost efficiencies;
(E) Ensuring affordability
of care;
(F) Enhancing and
preserving medical education programs; and
(G) Supporting the
authority?s goals and strategic mission, as applicable.
(4) (A) If the
cooperative agreement involves a combination of hospitals through merger or
consolidation or acquisition, the qualified hospital must have been awarded a
certificate of need for the project by the authority, as set forth in article
two-d of this chapter prior to submitting an application for review of a
cooperative agreement.
(B) (A) In addition
to a certificate of need, the authority may also require that an
application for review of a cooperative agreement as provided in this section shall
be submitted and approved prior to the finalization of the cooperative
agreement, if the cooperative agreement involves the merger, consolidation or
acquisition of a hospital located within a distance of twenty highway miles of
the main campus of the qualified hospital, and the authority shall have
determined that combination is likely to produce anti-competitive effects due
to a reduction of competition. Any such determination shall be communicated to
the parties to the cooperative agreement within seven days from approval of a
certificate of need for the project.
(C) (B) In reviewing an
application for cooperative agreement, the authority shall give deference to
the policy statements of the Federal Trade Commission.
(D) (C) If an
application for a review of a cooperative agreement is not required by the
authority, the parties to the agreement may then complete the transaction
following a final order by the authority on the certificate of need as set
forth in article two-d of this code. The qualified hospital may apply to
the authority for approval of the cooperative agreement either before or after the
finalization of the cooperative agreement.
(E) A party who has
received a certificate of need prior to the enactment of this provision during
the 2016 regular session of the Legislature may apply for approval of a
cooperative agreement whether or not the transaction contemplated thereby has
been completed.
(F) The complete record in
the certificate of need proceeding shall be part of the record in the
proceedings under this section and information submitted by an applicant in the
certificate of need proceeding need not be duplicated in proceedings under this
section.
(e) Procedure for review of cooperative agreements. ?
(1) Upon receipt of an
application, the authority shall determine whether the application is complete.
If the authority determines the application is incomplete, it shall notify the
applicant in writing of additional items required to complete the application.
A copy of the complete application shall be provided by the parties to the
Office of the Attorney General simultaneous with the submission to the
authority. If an applicant believes the materials submitted contain proprietary
information that is required to remain confidential, such information must be
clearly identified and the applicant shall submit duplicate applications, one
with full information for the authority?s use and one redacted application
available for release to the public.
(2) The authority shall
upon receipt of a completed application, publish notification of the
application on its website as well as provide notice of such application placed
in the State Register. The public may submit written comments regarding the
application within ten days following publication. Following the close of the
written comment period, the authority shall review the application as set forth
in this section. Within thirty days of the receipt of a complete application
the authority may:
(i) Issue a certificate of
approval which shall contain any conditions the authority finds necessary for
the approval;
(ii) Deny the application;
or
(iii) Order a public
hearing if the authority finds it necessary to make an informed decision on the
application.
(3) The authority shall
issue a written decision within seventy-five days from receipt of the completed
application. The authority may request additional information in which case
they shall have an additional fifteen days following receipt of the
supplemental information to approve or deny the proposed cooperative agreement.
(4) Notice of any hearing
shall be sent by certified mail to the applicants and all persons, groups or
organizations who have submitted written comments on the proposed cooperative
agreement as well as to all persons, groups or organizations designated as
affected parties in the certificate of need proceeding. Any individual,
group or organization who submitted written comments regarding the application
and wishes to present evidence at the public hearing shall request to be
recognized as an affected party as set forth in article two-d of this chapter.
The hearing shall be held no later than forty-five days after receipt of the
application. The authority shall publish notice of the hearing on the
authority?s website fifteen days prior to the hearing. The authority shall
additionally provide timely notice of such hearing in the State Register.
(5) Parties may file a
motion for an expedited decision.
(f) Standards for review of cooperative agreements. ?
(1) In its review of an
application for approval of a cooperative agreement submitted pursuant to this
section, the authority may consider the proposed cooperative agreement and any
supporting documents submitted by the applicant, any written comments submitted
by any person and any written or oral comments submitted, or evidence
presented, at any public hearing.
(2) The authority shall
consult with the Attorney General of this state regarding his or her assessment
of whether or not to approve the proposed cooperative agreement.
(3) The authority shall
approve a proposed cooperative agreement and issue a certificate of approval if
it determines, with the written concurrence of the Attorney General, that the
benefits likely to result from the proposed cooperative agreement outweigh the
disadvantages likely to result from a reduction in competition from the
proposed cooperative agreement.
(4) In evaluating the
potential benefits of a proposed cooperative agreement, the authority shall
consider whether one or more of the following benefits may result from the
proposed cooperative agreement:
(A) Enhancement and
preservation of existing academic and clinical educational programs;
(B) Enhancement of the
quality of hospital and hospital-related care, including mental health services
and treatment of substance abuse provided to citizens served by the authority;
(C) Enhancement of
population health status consistent with the health goals established by the
authority;
(D) Preservation of
hospital facilities in geographical proximity to the communities traditionally
served by those facilities to ensure access to care;
(E) Gains in the
cost-efficiency of services provided by the hospitals involved;
(F) Improvements in the
utilization of hospital resources and equipment;
(G) Avoidance of
duplication of hospital resources;
(H) Participation in the
state Medicaid program; and
(I) Constraints on increases
in the total cost of care.
(5) The authority?s
evaluation of any disadvantages attributable to any reduction in competition
likely to result from the proposed cooperative agreement shall include, but
need not be limited to, the following factors:
(A) The extent of any
likely adverse impact of the proposed cooperative agreement on the ability of
health maintenance organizations, preferred provider organizations, managed
health care organizations or other health care payors to negotiate reasonable
payment and service arrangements with hospitals, physicians, allied health care
professionals or other health care providers;
(B) The extent of any
reduction in competition among physicians, allied health professionals, other
health care providers or other persons furnishing goods or services to, or in
competition with, hospitals that is likely to result directly or indirectly
from the proposed cooperative agreement;
(C) The extent of any
likely adverse impact on patients in the quality, availability and price of health
care services; and
(D) The availability of
arrangements that are less restrictive to competition and achieve the same
benefits or a more favorable balance of benefits over disadvantages
attributable to any reduction in competition likely to result from the proposed
cooperative agreement.
(6) (A) After a complete
review of the record, including, but not limited to, the factors set out in
subsection (e) of this section, any commitments made by the applicant or
applicants and any conditions imposed by the authority, if the authority
determines that the benefits likely to result from the proposed cooperative
agreement outweigh the disadvantages likely to result from a reduction in
competition from the proposed cooperative agreement, the authority shall approve
the proposed cooperative agreement.
(B) The authority may
reasonably condition approval upon the parties? commitments to:
(i) Achieving improvements
in population health;
(ii) Access to health care
services;
(iii) Quality and cost
efficiencies identified by the parties in support of their application for
approval of the proposed cooperative agreement; and
(iv) Any additional
commitments made by the parties to the cooperative agreement.
Any conditions set by the
authority shall be fully enforceable by the authority. No condition imposed by
the authority, however, shall limit or interfere with the right of a hospital
to adhere to religious or ethical directives established by its governing
board.
(7) The authority?s
decision to approve or deny an application shall constitute a final order or
decision pursuant to the West Virginia Administrative Procedure Act (? 29A-1-1, et seq.). The authority may
enforce commitments and conditions imposed by the authority in the circuit
court of Kanawha County or the circuit court where the principal place of business
of a party to the cooperative agreement is located.
(g) Enforcement and supervision of
cooperative agreements. ? The authority shall enforce and supervise any
approved cooperative agreement for compliance.
(1) The authority is
authorized to promulgate legislative rules in furtherance of this section.
Additionally, the authority shall promulgate emergency rules pursuant to the
provisions of section fifteen, article three, chapter twenty-nine-a of this
code to accomplish the goals of this section. These rules shall include, at a
minimum:
(A) An annual report by the
parties to a cooperative agreement. This report is required to include:
(i) Information about the
extent of the benefits realized and compliance with other terms and conditions
of the approval;
(ii) A description of the
activities conducted pursuant to the cooperative agreement, including any
actions taken in furtherance of commitments made by the parties or terms
imposed by the authority as a condition for approval of the cooperative
agreement;
(iii) Information relating
to price, cost, quality, access to care and population health improvement;
(iv) Disclosure of any
reimbursement contract between a party to a cooperative agreement approved
pursuant to this section and a commercial health plan or insurer entered into
subsequent to the finalization of the cooperative agreement. This shall include
the amount, if any, by which an increase in the average rate of reimbursement
exceeds, with respect to inpatient services for such year, the increase in the
Consumer Price Index for all Urban Consumers for hospital inpatient services as
published by the Bureau of Labor Statistics for such year and, with respect to
outpatient services, the increase in the Consumer Price Index for all Urban
Consumers for hospital outpatient services for such year; and
(v) Any additional
information required by the authority to ensure compliance with the cooperative
agreement.
(B) If an approved
application involves the combination of hospitals, disclosure of the performance
of each hospital with respect to a representative sample of quality metrics
selected annually by the authority from the most recent quality metrics
published by the Centers for Medicare and Medicaid Services. The representative
sample shall be published by the authority on its website.
(C) A procedure for a
corrective action plan where the average performance score of the parties to
the cooperative agreement in any calendar year is below the fiftieth percentile
for all United States hospitals with respect to the quality metrics as set
forth in (B) of this subsection. The corrective action plan is required to:
(i) Be submitted one
hundred twenty days from the commencement of the next calendar year; and
(ii) Provide for a rebate
to each commercial health plan or insurer with which they have contracted an
amount not in excess of one percent of the amount paid to them by such
commercial health plan or insurer for hospital services during such two-year
period if in any two consecutive-year period the average performance score is
below the fiftieth percentile for all United States hospitals. The amount to be
rebated shall be reduced by the amount of any reduction in reimbursement which
may be imposed by a commercial health plan or insurer under a quality incentive
or awards program in which the hospital is a participant.
(D) A procedure where if
the excess above the increase in the Consumer Price Index for all Urban
Consumers for hospital inpatient services or hospital outpatient services is
two percent or greater the authority may order the rebate of the amount which
exceeds the respective indices by two percent or more to all health plans or
insurers which paid such excess unless the party provides written justification
of such increase satisfactory to the authority taking into account case mix
index, outliers and extraordinarily high cost outpatient procedure
utilizations.
(E) The ability of the
authority to investigate, as needed, to ensure compliance with the cooperative
agreement.
(F) The ability of the
authority to take appropriate action, including revocation of a certificate of
approval, if it determines that:
(i) The parties to the
agreement are not complying with the terms of the agreement or the terms and
conditions of approval;
(ii) The authority?s approval
was obtained as a result of an intentional material misrepresentation;
(iii) The parties to the
agreement have failed to pay any required fee; or
(iv) The benefits resulting
from the approved agreement no longer outweigh the disadvantages attributable to
the reduction in competition resulting from the agreement.
(G) If the authority
determines the parties to an approved cooperative agreement have engaged in
conduct that is contrary to state policy or the public interest, including the
failure to take action required by state policy or the public interest, the
authority may initiate a proceeding to determine whether to require the parties
to refrain from taking such action or requiring the parties to take such
action, regardless of whether or not the benefits of the cooperative agreement
continue to outweigh its disadvantages. Any determination by the authority
shall be final. The authority is specifically authorized to enforce its
determination in the circuit court of Kanawha County or the circuit court where
the principal place of business of a party to the cooperative agreement is
located.
(H) Fees as set forth in
subsection (h).
(2) Until the promulgation
of the emergency rules, the authority shall monitor and regulate cooperative
agreements to ensure that their conduct is in the public interest and shall
have the powers set forth in subdivision (1) of this subsection, including the
power of enforcement set forth in paragraph (G), subdivision (1) of this
subsection.
(h) Fees. ? The authority may set fees for the approval of a
cooperative agreement. These fees shall be for all reasonable and actual costs
incurred by the authority in its review and approval of any cooperative
agreement pursuant to this section. These fees shall not exceed $75,000.
Additionally, the authority may assess an annual fee not to exceed $75,000 for
the supervision of any cooperative agreement approved pursuant to this section
and to support the implementation and administration of the provisions of this
section.
(i) Miscellaneous provisions. ?
(1) (A) An agreement
entered into by a hospital party to a cooperative agreement and any state
official or state agency imposing certain restrictions on rate increases shall
be enforceable in accordance with its terms and may be considered by the
authority in determining whether to approve or deny the application. Nothing in
this chapter shall undermine the validity of any such agreement between a
hospital party and the Attorney General entered before the effective date of
this legislation.
(B) At least ninety days
prior to the implementation of any increase in rates for inpatient and
outpatient hospital services and at least sixty days prior to the execution of
any reimbursement agreement with a third party payor, a hospital party to a
cooperative agreement involving the combination of two or more hospitals
through merger, consolidation or acquisition which has been approved by the
authority shall submit any proposed increase in rates for inpatient and
outpatient hospital services and any such reimbursement agreement to the Office
of the West Virginia Attorney General together with such information concerning
costs, patient volume, acuity, payor mix and other data as the Attorney General
may request. Should the Attorney General determine that the proposed rates may
inappropriately exceed competitive rates for comparable services in the
hospital?s market area which would result in unwarranted consumer harm or
impair consumer access to health care, the Attorney General may request the
authority to evaluate the proposed rate increase and to provide its
recommendations to the Office of the Attorney General. The Attorney General may
approve, reject or modify the proposed rate increase and shall communicate his
or her decision to the hospital no later than 30 days prior to the proposed
implementation date. The hospital may then only implement the increase approved
by the Attorney General. Should the Attorney General determine that a
reimbursement agreement with a third party payor includes pricing terms at
anti-competitive levels, the Attorney General may reject the reimbursement
agreement and communicate such rejection to the parties thereto together with
the rationale therefor in a timely manner.
(2) The authority shall
maintain on file all cooperative agreements the authority has approved,
including any conditions imposed by the authority.
(3) Any party to a
cooperative agreement that terminates its participation in such cooperative
agreement shall file a notice of termination with the authority thirty days
after termination.
(4) No hospital which is a
party to a cooperative agreement for which approval is required pursuant to
this section may knowingly bill or charge for health services resulting from,
or associated with, such cooperative agreement until approved by the authority.
Additionally, no hospital which is a party to a cooperative agreement may
knowingly bill or charge for health services resulting from, or associated
with, such cooperative agreement for which approval has been revoked or terminated.
(5) By submitting an application for
review of a cooperative agreement pursuant to this section, the hospitals or
health care providers shall be deemed to have agreed to submit to the
regulation and supervision of the authority as provided in this section.
?16-29B-30. Applicability; transition
plan.
(a)
Notwithstanding any provision of this code to the contrary, effective July
1, 2017, the Health Care Authority shall transfer to the Department of Health
and Human and Resources. Any and all remaining functions of the Health Care
Authority shall transfer at that time to the Department of Health and Human
Resources.
(b) The Health Care Authority shall
develop and implement a transition plan to transfer all their remaining
functions to the Department of Health and Human Resources. The plan shall be
submitted in writing to the Joint Committee on Government and Finance, the
Governor and the Secretary of the Department of Health and Human Resources, the
Secretary of the Department of Administration and the Division of Personnel.
This plan shall be submitted no later than June 1, 2017. The plan shall include
proposals for the following:
(1) Transition to appropriate entities
or destruction of hard and electronic copies of files;
(2) Transfer of all certificate of need
matters pending as of July 1, 2017, to the Department of Health and Human
Resources.
(3) In consultation with the Department
of Administration, discontinuation of use of the current building including
termination of any lease or rental agreements, if necessary;
(4) In consultation with the Department
of Administration, disposition of all state owned or leased office furniture
and equipment, including any state owned vehicles, if necessary;
(5) Closing out and transferring
existing budget allocations;
(6) A transition plan developed in
conjunction with the Division of Personnel for remaining employees not
transferred to other offices within state government;
(7) A plan to repeal all existing
legislative rules made unnecessary by the transfer of the Health Care
Authority; and
(8) Any other matters which would
effectively terminate all functions not transferred to the Department of Health
and Human Resources.
(9) Effective July 1, 2017, the state
Privacy Office which was created pursuant to Executive Order No. 6-06 and which
is currently housed for administrative purposes within the Health Care
Authority shall be transferred to the Office of the Governor. Any staffing and
funding associated with the state Privacy Office shall, at that time, be so transferred.?
(10) Upon the effective date of the
changes to this article made during the course of the 2017 Regular Session of
the Legislature, any function of the Health Care Authority not otherwise
eliminated or transferred shall become a function of the Department of Health
and Human Resources.
?ARTICLE 29G. WEST VIRGINIA HEALTH INFORMATION
NETWORK.
?16-29G-1a.
Transfer of West Virginia Health Information Network.
??????????? (a) As used in this article, the
following mean:
??????????? (1) ?Agreement? means a document
that may be entered into between the network board and the corporation;
??????????? (2) ?Assets? means the tangible
and intangible personal property of the network on the transfer date, including
all assignable grants, all obligated funds on deposit in the network account,
agreements and contracts;
??????????? (3) ?Corporation? means any
nonstock, nonprofit corporation to be established under the chapter thirty-one;
??????????? (4) ?Network? means the West
Virginia Health Information Network; and
??????????? (5) ?Network account? means the
West Virginia Health Information Network Account.
??????????? (b) By December 31, 2017, the
network board of directors shall transfer the existing network, the associated
assets and liabilities to a private nonprofit corporation organized under
chapter thirty-one e of this code.
??????????? (c) The network board of
directors may enter into agreements as they determine are appropriate to
implement the transfer. The agreements are exempt from the bidding and public
sale requirements, from the approval of contractual agreements by the Department
of Administration or the Attorney General and from the requirements of chapter
five-a of this code.
??????????? (d) The initial corporation board
of directors may consist of any current members of the network board of
directors. The current appointed network directors shall continue to serve
until the transfer is complete. Notwithstanding any other provisions of this
code to the contrary, officers and employees of the network may be transferred
considered for employment with to the corporation, and any such employment
shall be deemed exempt from the requirements and limitations imposed by section
five, article two, chapter six-B and any legislative rules promulgated
thereunder.
??????????? (e) The corporation shall have
all powers afforded to a nonprofit corporation by law and is limited to those
powers enumerated in this article.
??????????? (f) The corporation shall not be
a department, unit, agency or instrumentality of the state.
??????????? (g) The corporation is not
subject to the provisions of article nine-a, chapter six of this code, Open Government
Proceeding; the provisions of article two, chapter six-c of this code, the West
Virginia Public Employees Grievance Procedure; the provisions of article six,
chapter twenty-nine of this code, Civil Service System; or the provisions of
chapter twenty-nine-b of this code, Freedom of Information; article twelve,
chapter twenty-nine of this code, State Insurance; article ten, chapter five,
of this code, West Virginia Public Employees Retirement Act, or the provisions
of article sixteen, chapter five, of this code, West Virginia Public Employees
Insurance Act.
??????????? (h) The Secretary of the
Department of Health and Human Resources may designate the corporation as the
state?s health information exchange, and shall have the authority to make sole
source grants or enter into sole source contracts with the corporation pursuant
to section ten-c, article three, chapter five-A of this code.
??????????? (i) The Secretary of the
Department of Health and Human Resources shall have access to the data free of
charge subject to the provisions of applicable state and federal law.
?16-29G-4. Creation of the
West Virginia Health Information Network account; authorization of Health Care
Authority to expend funds to support the network.
(a) All moneys collected shall be deposited in a special revenue
account in the state Treasury known as the West Virginia Health Information
Network Account. Expenditures from the fund shall be for the purposes set forth
in this article 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 three, chapter twelve of this code and upon fulfillment
of the provisions of article two, chapter eleven-b of this code: Provided,
That for the fiscal year ending June 30, 2007, expenditures are authorized from
collections rather than pursuant to appropriations by the Legislature.
(b) Consistent with
section eight, article twenty-nine-b of this chapter, the Health Care
Authority?s provision of administrative, personnel, technical and other forms
of support to the network is necessary to support the activities of the Health
Care Authority board and constitutes a legitimate, lawful purpose of the Health
Care Authority board. Therefore, the Health Care Authority is hereby authorized
to expend funds from its Health Care Cost Review Fund, established under
section eight, article twenty-nine-b of this chapter, to support the network?s
administrative, personnel and technical needs and any other network activities
the Health Care Authority deems necessary.
??????????? (c) Notwithstanding section ten,
article three, chapter twelve of this code, on the transfer date, the
encumbered amounts on deposit in the West Virginia Health Information Network
Account shall be paid over to the corporation, the account shall be closed and
subsection (a) of this section shall be of no further effect.?
CHAPTER
21. LABOR.
ARTICLE5.
NURSE OVERTIME AND PATIENT SAFETY ACT.
?21-5F-4. Enforcement; offenses and
penalties.
(a) Pursuant to the powers set forth in
article one of this chapter, the Commissioner of Labor is charged with the
enforcement of this article. The commissioner shall propose legislative and
procedural rules in accordance with the provisions of article three, chapter
twenty-nine-a of this code to establish procedures for enforcement of this
article. These rules shall include, but are not limited to, provisions to
protect due process requirements, a hearings procedure, an appeals procedure,
and a notification procedure, including any signs that must be posted by the
facility. (b) Any complaint must be filed with the commissioner regarding an
alleged violation of the provisions of this article must be made within thirty
days following the occurrence of the incident giving rise to the alleged
violation. The commissioner shall keep each complaint anonymous until the
commissioner finds that the complaint has merit. The commissioner shall
establish a process for notifying a hospital of a complaint.
(c) The administrative penalty for the
first violation of this article is a reprimand.
(d) The administrative penalty for the
second offense of this article is a reprimand and a fine not to exceed $500.
(e) The administrative penalty for the
third and subsequent offenses is a fine of not less than $2,500 and not more
than $5,000 for each violation.
(f) To be eligible to be charged of a
second offense or third offense under this section, the subsequent offense must
occur within twelve months of the prior offense.
(g) (1) All moneys paid as
administrative penalties pursuant to this section shall be deposited into the Health
Care Cost Review Fund provided by section eight, article twenty-nine-b, chapter
sixteen of this code General Revenue Fund.
(2) In addition to other purposes for
which funds may be expended from the Health Care Cost Review Fund, the West
Virginia Health Care Authority shall expend moneys from the fund, in amounts up
to but not exceeding amounts received pursuant to subdivision (1) of this
subsection, for the following activities in this state:
(A) Establishment of scholarships in
medical schools;
(B) Establishment of scholarships for
nurses training;
(C) Establishment of scholarships in
the public health field;
(D) Grants to finance research in the
field of drug addiction and development of cures therefor;
(E) Grants to public institutions
devoted to the care and treatment of narcotic addicts; and
(F) Grants for public health research,
education and care.
CHAPTER
33. INSURANCE.
ARTICLE 16D.
MARKETING AND RATE PRACTICES FOR SMALL EMPLOYER ACCIDENT AND SICKNESS INSURANCE
POLICIES.
?33-4A-1. Definitions.
(a) ?All-payer claims database? or ?APCD? means the program
authorized by this article that collects, retains, uses and discloses
information concerning the claims and administrative expenses of health care
payers.
(b) ?Chair? means the chairperson of the West Virginia Health Care
Authority.
(c) (b) ?Commissioner?
means the West Virginia Insurance Commissioner.
(d) (c) ?Data? means
the data elements from enrollment and eligibility files, specified types of
claims, and reference files for data elements not maintained in formats
consistent with national coding standards.
(d) ?Executive Director? means the executive director of the West
Virginia Health Care Authority.
(e) ?Health care payer? means any entity that pays or administers
the payment of health insurance claims or medical claims under workers?
compensation insurance to providers in this state, including workers?
compensation insurers; accident and sickness insurers; nonprofit hospital
service corporations, medical service corporations and dental service
organizations; nonprofit health service corporations; prepaid limited health
service organizations; health maintenance organizations; and government payers,
including but not limited to Medicaid, Medicare and the public employees
insurance agency; the term also includes any third-party administrator
including any pharmacy benefit manager, that administers a fully-funded or
self-funded plan:
A ?health insurance claim? does not include:
(1) Any claim paid under an individual or group policy providing
coverage only for accident, or disability income insurance or any combination
thereof; coverage issued as a supplement to liability insurance; liability
insurance, including general liability insurance and automobile
liability; credit-only insurance; coverage for on-site medical clinics;
other similar insurance coverage, which may be specified by rule, under which
benefits for medical care are secondary or incidental to other insurance
benefits; or
(2) Any of the following if provided under a separate policy,
certificate, or contract of insurance: Limited scope dental or vision
benefits: benefits for long-term care, nursing home care, home health
care, community-based care, or any combination thereof; coverage for only
a specified disease or illness; or hospital indemnity or other fixed
indemnity insurance.
?Health insurance claims? shall only include information from Medicare
supplemental policies if the same information is obtained with respect to
Medicare.
(f) ?Personal identifiers? means information relating to an
individual member or insured that identifies, or can be used to identify,
locate or contact a particular individual member or insured, including but not
limited to the individual?s name, street address, social security number,
e-mail address and telephone number.
(g) ?Secretary? means the Secretary of the West Virginia
Department of Health and Human Services.
(h) ?Third-party administrator? has the same meaning ascribed to
it in section two, article forty-six of this chapter.
?33-4A-2. Establishment and
development of an all-payer claims database.
(a) The secretary, commissioner and chair the executive
director, collectively referred to herein as the ?MOU parties?, shall enter
into a memorandum of understanding to develop an all-payer claims database
program.
(b) The memorandum of understanding shall, at a minimum:
(1) Provide that the commissioner will have primary responsibility
for the collection of the data in order to facilitate the efficient
administration of state oversight, the secretary will have primary
responsibility for the retention of data supplied to the state under its health
care oversight function, and the chair executive director will
have primary responsibility for the dissemination of the data;
(2) Delineate the MOU parties? roles, describe the process to
develop legislative rules required by this article, establish communication
processes and a coordination plan, and address vendor relationship management;
(3) Provide for the development of a plan for the financial
stability of the APCD, including provision for funding by the MOU parties?
agencies; and
(4) Provide for the use of the hospital discharge data collected
by the West Virginia Health Care Authority as a tool in the validation of APCD
reports.
?33-4A-3. Powers of the
commissioner, secretary and chair executive director; exemption
from purchasing rules.
(a) The MOU parties may:
(1) Accept gifts, bequests, grants or other funds dedicated to the
furtherance of the goals of the APCD;
(2) Select a vendor to handle data collection and processing and
such other tasks as deemed appropriate;
(3) Enter into agreements with other states to perform joint
administrative operations, share information and assist in the development of
multistate efforts to further the goals of this article: Provided, That
any such agreements must include adequate protections with respect to the
confidentiality of the information to be shared and comply with all state and
federal laws and regulations;
(4) Enter into memoranda of understanding with other governmental
agencies to carry out any of its functions, including contracts with other
states to perform joint administrative functions;
(5) Attempt to ensure that the requirements with respect to the
reporting of data be standardized so as to minimize the expense to parties
subject to similar requirements in other jurisdictions;
(6) Enter into voluntary agreements to obtain data from payers not
subject to mandatory reporting under this article; and
(7) Exempt a payer or class of payers from the requirements of
this article for cause.
(b) Contracts for professional services for the development and
operation of the APCD are not subject to the provisions of article three,
chapter five-a of this code relating to the Purchasing Division of the
Department of Administration. The award of such contracts shall be subject to a
competitive process established by the MOU parties.
(c) The MOU parties shall make an annual report to the Governor,
which shall also be filed with the Joint Committee on Government and Finance,
summarizing the activities of the APCD in the preceding calendar year.
?33-4A-5. User fees; waiver.
Reasonable user fees may be set in the manner established in
legislative rule, for the right to access and use the data available from the
APCD. The chair executive director may reduce or waive the fee if
he or she determines that the user is unable to pay the scheduled fees and that
the user has a viable plan to use the data or information in research of
general value to the public health.
?33-4A-6. Enforcement;
injunctive relief.
In the event of any violation of this article or any rule adopted
thereunder, the commissioner, secretary or chair executive director
may seek to enjoin a further violation in the circuit court of Kanawha County.
Injunctive relief ordered pursuant to this section may be in addition to any
other remedies and enforcement actions available to the commissioner under this
chapter.
?33-4A-7. Special revenue
account created.
(a) There is hereby created a special revenue account in the State
Treasury, designated the West Virginia All-Payer Claims Database Fund, which
shall be an interest-bearing account and may be invested in the manner
permitted by article six, chapter twelve of this code, with the interest income
a proper credit to the fund and which shall not revert to the general revenue,
unless otherwise designated in law. The fund shall be overseen by the
commissioner, secretary and chair executive director, shall be
administered by the commissioner, and shall be used to pay all proper costs
incurred in implementing the provisions of this article.
(b) The following funds shall be paid into this account:
(1) Penalties imposed on health care payers pursuant to this
article and rules promulgated hereunder;
(2) Funds received from the federal government;
(3) Appropriations from the Legislature; and
(4) All other payments, gifts, grants, bequests or income from any
source.
ARTICLE 16D. MARKETING AND RATE
PRACTICES FOR SMALL EMPLOYER ACCIDENT AND SICKNESS INSURANCE POLICIES.
?33-16D-16. Authorization of uninsured
small group health benefit plans.
(a) Upon filing with and approval by
the commissioner, any carrier licensed pursuant to this chapter which accesses
a health care provider network to deliver services may offer a health benefit
plan and rates associated with the plan to a small employer subject to the
conditions of this section and subject to the provisions of this article. The
health benefit plan is subject to the following conditions:
(1) The health benefit plan may be
offered by the carrier only to small employers which have not had a health
benefit plan covering their employees for at least six consecutive months
before the effective date of this section. After the passage of six months from
the effective date of this section, the health benefit plan under this section
may be offered by carriers only to small employers which have not had a health
benefit plan covering their employees for twelve consecutive months;
(2) If a small employer covered by a
health benefit plan offered pursuant to this section no longer meets the
definition of a small employer as a result of an increase in eligible
employees, that employer shall remain covered by the health benefit plan until
the next annual renewal date;
(3) The small employer shall pay at
least fifty percent of its employees? premium amount for individual employee
coverage;
(4) The commissioner shall promulgate
emergency rules under the provisions of article three, chapter twenty-nine-a of
this code on or before September 1, 2004, to place additional restrictions upon
the eligibility requirements for health benefit plans authorized by this
section in order to prevent manipulation of eligibility criteria by small
employers and otherwise implement the provisions of this section;
(5) Carriers must offer the health
benefit plans issued pursuant to this section through one of their existing
networks of health care providers;
(A) The West Virginia Health Care
Authority Insurance Commission shall, on or before May 1, 2004, and
each year thereafter, by regular mail, provide a written notice to all known
in-state health care providers that:
(i) Informs the health care provider
regarding the provisions of this section; and
(ii) Notifies the health care provider
that if the health care provider does not give written refusal to the West
Virginia Health Care Authority Insurance Commission within thirty
days from receipt of the notice or the health care provider has not previously
filed a written notice of refusal to participate, the health care provider must
participate with and accept the products and provider reimbursements authorized
pursuant to this section;
(B) The carrier?s network of health
care providers, as well as any health care provider which provides health care
goods or services to beneficiaries of any departments or divisions of the
state, as identified in article twenty-nine-d, chapter sixteen of this code,
shall accept the health care provider reimbursement rates set pursuant to this
section unless the health care provider gives written refusal to the West
Virginia Health Care Authority Insurance Commission between May 1
and June 1 that the provider will not participate in this program for the next
calendar year. Notwithstanding any provision of this code to the contrary,
health care providers may not be mandated to participate in this program except
under the opt-out provisions of subdivision (5), subsection (a) of this section
and therefore the health care provider shall annually have the ability to file
with the West Virginia Health Care Authority Insurance Commission
written notice that the health care provider will not participate with products
issued pursuant to this section. Once a health care provider has filed a notice
of refusal with the West Virginia Health Care Authority Insurance
Commission, the notice shall remain effective until rescinded by the
provider and the provider shall not be required to renew the notice each year;
(C) The West Virginia Health Care
Authority Insurance Commission is responsible for receiving the
responses, if any, from the health care providers that have elected not to
participate and for providing a list to the commissioner of those health care
providers that have elected not to participate;
(D) Those health care providers that do
not file a notice of refusal shall be considered to have accepted participation
in this program and to accept Public Employees Insurance Agency health care
provider reimbursement rates for their services as set by this section;
(E) Health care provider reimbursement
rates used by the carrier for a health benefit plan offered pursuant to this
section shall have no effect on provider rates for other products offered by
the carrier and most-favored-nation clauses do not apply to the rates;
(6) With respect to the health benefit
plans authorized by this section, the carrier shall reimburse network health
care providers at the same health care provider reimbursement rates in effect
for the managed care and health maintenance organization plans offered by the
West Virginia Public Employees Insurance Agency. Beginning in the year 2004,
and in each year thereafter, the health care provider reimbursement rates set
under this section may not be lowered from the level of the rates in effect on
July 1 of that year for the managed care and health maintenance plans offered
by the Public Employees Insurance Agency. While it is the intent of this
paragraph to govern rates for plans offered pursuant to this section for annual
periods, this subdivision in no way prevents the Public Employees Insurance
Agency from making provider reimbursement rate adjustments to Public Employees
Insurance Agency plans during the course of each year. If there is a dispute
regarding the determination of appropriate rates pursuant to this section, the
Director of the Public Employees Insurance Agency shall, in his or her sole
discretion, specify the appropriate rate to be applied;
(A) The health care provider
reimbursement rates as authorized by this section shall be accepted by the
health care provider as payment in full for services or products provided to a
person covered by a product authorized by this section;
(B) Except for the health care provider
rates authorized under this section, a carrier?s payment methodology, including
copayments and deductibles and other conditions of coverage, remains unaffected
by this section;
(C) The provisions of this section do
not require the Public Employees Insurance Agency to give carriers access to
the purchasing networks of the Public Employees Insurance Agency. The Public
Employees Insurance Agency may enter into agreements with carriers offering
health benefit plans under this section to permit the carrier, at its election,
to participate in drug purchasing arrangements pursuant to article sixteen-c,
chapter five of this code, including the multistate drug purchasing program.
This paragraph provides authorization of the agreements pursuant to section
four of said article;
(7) Carriers may not underwrite products
authorized by this section more strictly than other small group policies
governed by this article;
(8) With respect to health benefit
plans authorized by this section, a carrier shall have a minimum anticipated
loss ratio of seventy-seven percent to be eligible to make a rate increase
request after the first year of providing a health benefit plan under this
section;
(9) Products authorized under this
section are exempt from the premium taxes assessed under sections fourteen and
fourteen-a, article three of this chapter;
(10) A carrier may elect to nonrenew
any health benefit plan to an eligible employer if, at any time, the carrier
determines, by applying the same network criteria which it applies to other
small employer health benefit plans, that it no longer has an adequate network
of health care providers accessible for that eligible small employer. If the
carrier makes a determination that an adequate network does not exist, the
carrier has no obligation to obtain additional health care providers to
establish an adequate network;
(11) Upon thirty days? advance notice
to the commissioner, a carrier may, at any time, elect to nonrenew all health
benefit plans issued pursuant to this section. If a carrier nonrenews all its
business issued pursuant to this section for any reason other than the adequacy
of the provider network, the carrier may not offer this health benefit plan to
any eligible small employer for a period of at least two years after the last
eligible small employer is nonrenewed; and
(12) The Insurance Commissioner may not
approve any health benefit plan issued pursuant to this section until it has
obtained any necessary federal governmental authorizations or waivers. The
Insurance Commissioner shall apply for and obtain all necessary federal
authorizations or waivers.
(b) Health benefit plans authorized by
this section are not intended to violate the prohibition set out in subsection
(a), section four of this article.
(c) Carriers offering health benefit
plans pursuant to this section shall annually or before December 1 of each year
report in a form acceptable to the commissioner the number of health benefit
plans written by the carrier and the number of individuals covered under the
health benefit plans.
(d) To the extent that provisions of
this section differ from those contained elsewhere in this chapter, the
provisions of this section control.
On motion of Senator Takubo, the following amendments to the Health and
Human Resources committee amendment to the bill (Eng. Com. Sub. for H. 2459)
were reported by the Clerk, considered simultaneously, and adopted:
On page
On page twenty-five, section ten, lines twenty-one through thirty-one by
striking out all of subdivisions (6) and (7) and inserting in lieu thereof the
following:
?(6) (A) Notwithstanding the provisions of section seventeen of this
article, any hospital that holds a valid certificate of need issued pursuant to
this article, may transfer that certificate of need to a person purchasing that
hospital, or all or substantially all of its assets, if the hospital is
financially distressed. A hospital is financially distressed if, at the time of
its purchase:
(i) It has filed a petition for voluntary bankruptcy;
(ii) It has been the subject of an involuntary petition for bankruptcy;
(iii) It is in receivership;
(iv) It is operating under a forbearance agreement with one or more of its
major creditors;
(v) It is in default of its obligations to pay one or more of its major
creditors and is in violation of the material, substantive terms of its debt
instruments with one or more of its major creditors; or
(vi) It is insolvent: evidenced by balance sheet insolvency
and/or the inability to pay its debts as they come due in the ordinary course
of business.
(B) A financially distressed hospital which is being purchased pursuant
to the provisions of this subsection shall give notice to the authority of the
sale thirty days prior to the closing of the transaction and shall file
simultaneous with that notice evidence of its financial status. The financial
status or distressed condition of a hospital shall be evidenced by the filing of
any of the following:
(i) A copy of a forbearance agreement;
(ii) A copy of a petition for voluntary or involuntary bankruptcy;
(iii) Written evidence of receivership, or
(iv) Documentation establishing the requirements of subparagraph (v) or
(vi), paragraph (A) of this subdivision. The names of creditors may be redacted
by the filing party.
(C) Any substantial change to the capacity of services offered in that
hospital made subsequent to that transaction would remain subject to the
requirements for the issuance of a certificate of need as otherwise set forth
in this article.
(D) Any person purchasing a financially distressed hospital, or all or
substantially all of its assets, that has applied for a certificate of need
after January 1, 2017, shall qualify for an exemption from certificate of need;
(7) The acquisition by a qualified hospital which is party to an
approved cooperative agreement as provided in section twenty-eight, article
twenty-nine-b, chapter sixteen of this code, of a hospital located within a
distance of twenty highway miles of the main campus of the qualified hospital;
and
(8) The acquisition by a hospital of a physician practice group which
owns an ambulatory surgical center as defined in this article.?;
On page twenty-six, section eleven, subsection (c), subdivision (1),
line thirty-three, after the word ?business? by striking out the period and the
word ?If? and inserting in lieu thereof the words ?and if?;
On page twenty-six, section eleven, subsection (c), subdivision (1),
line thirty-eight, after the word ?percent? by changing the period to a colon
and inserting the following proviso: Provided,
That these limitations on the exemption for a private office practice with
more than one location shall not apply to a private office practice with more
than twenty locations in the state at the time of the changes made to this
article during the 2017 Regular Session of the Legislature.;
On page twenty-seven, section eleven, subsection (b), subdivision (4),
line fifty-eight, after the word ?facility? by changing the period to a colon
and inserting the following proviso: Provided,
That a skilled nursing facility developed pursuant to subdivision (17) of this
section and subsequently acquired pursuant to this subdivision may not transfer
or sell any of the skilled nursing home beds of the acquired skilled nursing
facility until the skilled nursing facility has been in operation for at least
ten years.;
On page twenty-nine, section eleven, subsection (b), subdivision (17),
lines ninety-three and ninety-four, by striking out the following: ?The beds
may not be transferred or sold until the skill nursing facility has been in
operation for at least ten years;?;
On page sixty, section thirty, lines twenty-five through twenty-eight,
by striking out all of subdivision (9);
And,
By renumbering the remaining subsection.
??????????? The question now being on the
adoption of the Health and Human Resources committee amendment to the bill, as
amended, the same was put and prevailed.
The bill
Eng. Com. Sub. for House Bill
2679, Relating to the
possession of firearms in parks and park facilities.
On second reading, coming up in regular order, was read a second time.
At the request of Senator
Eng. Com. Sub. for House Bill
2721, Removing the cost
limitation on projects completed by the Division of Highways.
On
At the request of Senator
Eng. Com. Sub. for House Bill
2722, Eliminating the
financial limitations on utilizing the design-build program for highway
construction.
On
At the request of Senator
Eng. House Bill 3106, Relating to increasing the number of limited
video lottery terminals.
On
At the request of Senator
The end of today?s
Eng. Com. Sub. for Senate Bill
286, Relating to
grandparents? visitation rights.
Having been read a third time in earlier proceedings today, and now
coming up in deferred order, was reported by the Clerk.
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Azinger, Beach, Blair, Boley,
Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann,
Maroney, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano,
Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel
and Carmichael (Mr. President)?34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
??????????? Action as to Engrossed Committee Substitute for Senate Bill 286 having been concluded, the Senate proceeded to the consideration of
Com. Sub. for Senate Bill 386, Creating WV Medical Cannabis Act.On third reading, coming up in regular
order, was reported by the Clerk.
On third reading, coming up in deferred order, with the unreported
Judiciary committee amendment pending and with the right having been granted on
yesterday, Tuesday, March 28, 2017, for amendments to be received on third
reading, was reported by the Clerk.
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 the Code of West Virginia, 1931, as amended, be amended by adding
thereto a new article, designated ?16-8A-1, ?16-8A-2, ?16-8A-3, ?16-8A-4, ?16-8A-5,
?16-8A-6, ?16-8A-7, ?16-8A-8, ?16-8A-9, ?16-8A-10, ?16-8A-11, ?16-8A-12,
?16-8A-13, ?16-8A-14, ?16-8A-15, ?16-8A-16 and ?16-8A-17, all to read as
follows:
ARTICLE 8A.
West virginia MEDICAL CANNABIS act.
?16-8A-1. Definitions.
As used in this article, the following
words have the meanings indicated.
(1) ?Caregiver? means:
(A) A person who has agreed to assist
with a qualifying patient?s medical use of cannabis; and
(B) For a qualifying patient under the
age of eighteen years, a parent or legal guardian.
(2) ?Certifying physician? means an
individual who:
(A) Has an active, unrestricted license
to practice medicine that was issued by the West Virginia Board of Medicine or
the West Virginia Board of Osteopathic Medicine;
(B) Is in good standing with the West
Virginia Board of Medicine or the West Virginia Board of Osteopathic Medicine,
whichever is applicable;
(C) Has a valid and unencumbered
authority to prescribe controlled substances; and
(D) Is registered with the commission
to make cannabis available to patients for medical use in accordance with
regulations adopted by the commission.
(3) ?Commission? means the West
Virginia Medical Cannabis Commission established under this article.
(4) ?Dispensary? means an entity
licensed under this article that acquires, possesses, processes, transfers,
transports, sells, distributes, dispenses, or administers cannabis, products
containing cannabis, related supplies, related products containing cannabis
including food, tinctures, aerosols, oils, or ointments, or educational
materials for use by a qualifying patient or caregiver.
(5) ?Dispensary agent? means an owner,
a member, an employee, a volunteer, an officer, or a director of a dispensary.
(6) ?Fund? means the West Virginia
Medical Cannabis Commission Fund established under this article.
(7) ?Grower? means an entity licensed
under this article that:
(A)(i) Cultivates, manufactures,
processes, packages, or dispenses medical cannabis; or
(ii) Processes medical cannabis
products; and
(B) Is authorized by the commission to
provide cannabis to a qualifying patient, caregiver, processor, dispensary, or
independent testing laboratory.
(8) ?Independent testing laboratory?
means a facility, entity, or site that offers or performs tests related to the
inspection and testing of cannabis and products containing cannabis.
(9) ?Medical cannabis grower agent?
means an owner, an employee, a volunteer, an officer, or a director of a
grower.
(10) ?Processor? means an entity that:
(A) Transforms medical cannabis into
another product or extract; and
(B) Packages and labels medical
cannabis.
(11) ?Processor agent? means an owner,
member, employee, volunteer, officer, or director of a processor.
(12) ?Qualifying patient? means an
individual who:
(A) Has been provided with a written
certification by a certifying physician in accordance with a bona fide
physician?patient relationship; and
(B) If under the age of eighteen years,
has a caregiver.
(13) ?Written certification? means a
certification that:
(A) Is issued by a certifying physician
to a qualifying patient with whom the physician has a bona fide
physician?patient relationship; and
(B) Includes a written statement
certifying that, in the physician?s professional opinion, after having
completed an assessment of the patient?s medical history and current medical
condition, the patient has a condition:
(i) That meets the inclusion criteria
and does not meet the exclusion criteria of the certifying physician?s
application; and
(ii) For which the potential benefits
of the medical use of cannabis would likely outweigh the health risks for the
patient; and
(C) May include a written statement
certifying that, in the physician?s professional opinion, a thirty?day supply
of medical cannabis would be inadequate to meet the medical needs of the
qualifying patient.
(D) Written certifications referenced
in this subdivision shall be written on tamper-resistant, non-copyable paper.
?16-8A-2. Creation of West Virginia
Medical Cannabis Commission.
(a) There is hereby created the West
Virginia Medical Cannabis Commission.
(b) The commission is an independent
commission that functions within the Department of Health and Human Resources.
(c) The purpose of the commission is to
develop policies, procedures, guidelines, and regulations to implement programs
to make medical cannabis available to qualifying patients in a safe and
effective manner.
(d) The commission shall develop
identification cards for qualifying patients and caregivers.
(e) The department shall adopt rules
that establish the requirements for identification cards provided by the
commission. The rules shall include:
(1) The information to be included on
an identification card;
(2) Requirements that ensure
identification cards may not be tampered with or altered and that the
identification cards be non-copyable;
(3) The method through which the
commission will distribute identification cards; and
(4) The method through which the
commission will track identification cards.
(f) The commission shall develop and
maintain a website that:
(1) Provides information on how an
individual can obtain medical cannabis in the state; and
(2) Provides contact information for
licensed dispensaries.
?16-8A-3. Makeup of commission and
creation of the West Virginia Medical Cannabis Commission Fund.
(a) The commission shall consist of the
following sixteen members:
(1) The Secretary of the Department of
Health and Human Resources, or the secretary?s designee;
(2) The Commissioner of the Department
of Agriculture, or the commissioner?s designee;
(3) The West Virginia Treasurer, or the
Treasurer?s designee; and
(4) The following twelve members,
appointed by the Governor:
(i) Two members of the public who
support the use of cannabis for medical purposes and who are or were patients
who found relief from the use of cannabis;
(ii) One member designated by the West
Virginia Association of Alcoholism and Drug Counselors;
(iii) Two physicians licensed to
practice in this state;
(iv) One nurse practitioner licensed to
practice in this state with experience in hospice care;
(v) One pharmacist licensed to practice
in this state;
(vi) One pharmacologist who has
experience in the science of cannabis with experience in and a knowledge of the
uses, effects and modes of actions of drugs;
(vii) One representative of the West
Virginia State Bar;
(viii) One representative of law
enforcement;
(ix) An attorney licensed in this state
who is knowledgeable about medical cannabis laws in the United States; and
(x) An individual with experience in
horticulture, recommended by the Department of Agriculture.
(b)(1) The term of a member is four
years. However, the Governor shall set the terms of the initial members of the
commission by executive order such that three expire after one year, three
expire after two years, and three expire after three years in order to stagger
the membership terms of the commission.
(2) At the end of a commission member?s
term, he or she shall continue to serve until a successor is appointed and
qualified.
(3) A member may not serve more than
three consecutive full terms.
(4) A member who is appointed after a
term has begun serves only for the rest of the term and until a successor is
appointed and qualifies.
(c) The Governor shall designate the
chair from among the members of the commission.
(d) A majority of the full authorized
membership of the commission is a quorum.
(e) A member of the commission may not
receive compensation, but shall be entitled to reimbursement for expenses
incurred while engaged in the discharge of official duties, not to exceed the
amount paid to members of the Legislature.
(f) The commission may employ staff,
including contractual staff, in accordance with the funds provided in the
annual state budget.
(g) The commission may set reasonable
fees that shall be sufficient to cover the costs of operating the commission in
conformity with the duties imposed upon it by the provisions of this article.
(h)(1) There is hereby created in the
State Treasury a separate special revenue account, which shall be an
interest-bearing account, to be known as the West Virginia Medical Cannabis
Commission Fund.
(2) The commission shall administer the
fund.
(3) Any balance remaining in the fund
at the end of any state fiscal year reverts to the General Revenue Fund: Provided, That annually ten percent of
the funds shall be dedicated to educational programs regarding safe cannabis
use and supporting controlled substance and alcohol recovery programs. The
commission shall establish a procedure for disbursement by rule.
(4) The fund shall be subject to an
audit by the West Virginia Legislative Auditor?s Office.
(5) The Treasurer shall pay out money
from the fund as directed by the commission.
(6) The fund consists of:
(A) Any money appropriated by the
Legislature to the fund;
(B) Any other money from any other
source accepted for the benefit of the fund, in accordance with any conditions
adopted by the commission for the acceptance of donations or gifts to the fund;
and
(C) Any fees collected by the
commission under this article.
?16-8A-4. Certifying physician?s
registration.
(a) The commission shall register as a
certifying physician an individual who:
(1) Meets the requirements of this
article; and
(2) Submits application materials that
meet the requirements of this article.
(b) To be registered as a certifying physician,
a physician shall submit a proposal to the commission that includes:
(1) The reasons for including a patient
under the care of the physician for the purposes of this article, including the
patient?s qualifying medical conditions;
(2) An attestation that a standard
patient evaluation will be completed, including a history, a physical
examination, a review of symptoms, and other pertinent medical information; and
(3) The physician?s plan for the
ongoing assessment and follow?up care of a patient, and for collecting and
analyzing data.
(c) The commission may not require an
individual to meet requirements in addition to the requirements listed in
subsections (a) and (b) of this section to be registered as a certifying
physician.
(d)(1) The commission shall consider
for approval physician applications for the following medical conditions:
(A) Chronic or debilitating diseases or
medical conditions that result in a patient being admitted into Hospice or
receiving palliative care; and
(B) Chronic or debilitating diseases or
medical conditions or the treatment of chronic or debilitating diseases or
medical conditions that produce:
(i) Cachexia, anorexia, or wasting
syndrome;
(ii) Severe or chronic pain that does
not find effective relief through standard pain medication;
(iii) Severe nausea;
(iv) Seizures;
(v) Severe or persistent muscle spasms;
or
(vi) Refractory generalized anxiety
disorder.
(2) The commission may not limit
treatment of a particular medical condition to one class of physicians.
(C) Post-traumatic stress disorder.
(e) The commission may approve
applications that include any other condition that is severe and for which
other medical treatments have been ineffective if the symptoms reasonably can
be expected to be relieved by the medical use of cannabis.
(f)(1) A certifying physician or the
spouse of a certifying physician may not receive any gifts from or have an
ownership interest in a medical cannabis grower, a processor, or a dispensary.
(2) A certifying physician may receive
compensation from a medical cannabis grower, a processor, or dispensary if the
certifying physician:
(A) Obtains the approval of the
commission before receiving the compensation; and
(B) Discloses the amount of
compensation received from the medical cannabis grower, processor, or
dispensary to the commission.
(g)(1) A qualifying patient may be a
patient of the certifying physician or may be referred to the certifying
physician.
(2) A certifying physician shall
provide each written certification to the commission.
(3) On receipt of a written
certification provided under subdivision (2) of this subsection, the commission
shall issue an identification card to each qualifying patient or caregiver
named in the written certification.
(4) A certifying physician may discuss
medical cannabis with a patient.
(5)(A) Except as provided in paragraph
(B) of this subdivision, a qualifying patient or caregiver may obtain medical
cannabis only from a medical cannabis grower licensed by the commission or a
dispensary licensed by the commission.
(B) A qualifying patient under the age
of eighteen years may obtain medical cannabis only through his or her
caregiver.
(6)(A) A caregiver may serve no more
than five qualifying patients at any time.
(B) A qualifying patient may have no
more than two caregivers.
(h)(1) A certifying physician shall
register biennially.
(2) The commission shall grant or deny
a renewal of a registration for approval based on the physician?s performance
in complying with rules adopted by the commission.
(i) Certifying physicians shall report
all certifications for qualifying patients as set forth in this article to the
Controlled Substances Monitoring Database as set forth in article nine, chapter
sixty-A of this code.
?16-8A-5. Reporting requirement.
On or before January 31 each year, the
commission shall report to the Governor and the Joint Committee on Government
and Finance the commission?s activities over the course of the previous year.
?16-8A-6. Medical cannabis growers and
grower agents.
(a)(1) The commission may license
medical cannabis growers that meet all requirements established by the
commission to operate in the state to provide cannabis to:
(A) Processors licensed by the
commission under this article;
(B) Dispensaries licensed by the
commission under this article;
(C) Qualifying patients and caregivers;
and
(D) Independent testing laboratories
registered with the commission under this article.
(2)(A) Except as provided in paragraph
(B) of this subdivision, the commission may license no more than fifteen
medical cannabis growers.
(B) Beginning July 1, 2020, the
commission may issue the number of licenses necessary to meet the demand for
medical cannabis by qualifying patients and caregivers in an affordable,
accessible, secure, and efficient manner.
(C) The commission shall establish an
application review process for granting medical cannabis grower licenses in
which applications are reviewed, evaluated, and ranked based on criteria
established by the commission.
(D) If the commission finds sufficient
availability, at least ten percent of the licenses granted pursuant to this
section shall be to persons participating in a veterans agriculture program.
(E) The commission may not issue more
than one medical cannabis grower license to each applicant.
(F) A grower shall pay an application
fee in an amount to be determined by the commission consistent with this
article.
(3) The commission shall set standards
for licensure as a medical cannabis grower to ensure public safety and safe
access to medical cannabis, which may include a requirement for the posting of
security.
(4) Each medical cannabis grower agent
shall:
(A) Be registered with the commission
before the agent may volunteer or work for a licensed grower; and
(B) Obtain state and national criminal
history records checks in accordance with section twelve of this article.
(5)(A) A licensed grower shall apply to
the commission for a registration card for each grower agent by submitting the
name, address, and date of birth of the agent.
(B) Within one business day after a
grower agent ceases to be associated with a grower, the grower shall notify the
commission and return the grower agent?s registration card to the commission.
On receipt of the notice, the commission shall immediately revoke the registration
card of the grower agent and, if the registration card was not returned to the
commission, notify the Superintendent of the West Virginia State Police.
(C) The commission may not register a
person as a grower agent who has been convicted of a felony drug offense.
(6)(A) A medical cannabis grower
license is valid for four years on initial licensure.
(B) A medical cannabis grower license
is valid for two years on renewal.
(7) An application to operate as a
medical cannabis grower may be submitted in paper or electronic form.
(8)(A) The commission may encourage
licensing medical cannabis growers that grow strains of cannabis, including
strains with high cannabidiol content, with demonstrated success in alleviating
symptoms of specific diseases or conditions.
(B) The commission may encourage
licensing medical cannabis growers that prepare medical cannabis in a range of
routes of administration.
(9)(A) The commission shall:
(i) Actively seek to achieve geographic
diversity when licensing medical cannabis growers; and
(ii) Encourage applicants who qualify
as a minority-owned business, as that term is defined in section fifty-nine,
article three, chapter five-a of this code.
(B) Beginning July 1, 2020, a grower
licensed under this article to operate as a medical cannabis grower shall
report annually to the commission regarding geographic diversity and minority
ownership and employees of the grower.
(10) An entity seeking licensure as a
medical cannabis grower shall meet local zoning and planning requirements.
(b) An entity licensed to grow medical
cannabis under this section may provide cannabis only to:
(1) Processors licensed by the
commission under this article;
(2) Dispensaries licensed by the
commission under this article;
(3) Qualified patients;
(4) Caregivers; and
(5) Independent testing laboratories
registered with the commission under this article.
(c)(1) An entity licensed to grow
cannabis under this section may only dispense cannabis from a facility of a
grower that is also licensed as a dispensary.
(2) An entity licensed to grow medical
cannabis under this section may be licensed to grow and process medical
cannabis on the same premises.
(d) An entity licensed to grow medical
cannabis under this section shall ensure that safety precautions established by
the commission are followed by any facility operated by the grower.
(e) The commission shall establish
requirements for security and the manufacturing process that a grower must meet
to obtain a license under this section, including, but not limited to, a
requirement for a product-tracking system.
(f) A grower licensed under this
section shall allow the commission and its agents to inspect licensed
facilities.
(g) The commission is authorized to
impose penalties or rescind the license of a grower that does not meet the
standards for licensure set by the commission.
(h) Notwithstanding any provision of
law to the contrary, a qualifying patient is exempt from the provisions of this
section and may grow and cultivate no more than two mature cannabis plants solely
for his or her own use in accordance with the certification from a certifying
physician. A qualifying patient remains subject to the prohibitions set forth
in section four hundred one, article four, chapter sixty-A of this code for
delivery or distribution of any cannabis which is grown and possessed pursuant
to this subsection.?
?16-8A-7. Dispensaries.
(a) The Commission is hereby authorized
to license dispensaries of medical cannabis.
(b) To be licensed as a dispensary, an
applicant must submit to the commission:
(1) An application fee in an amount to
be determined by the commission consistent with this article; and
(2) An application that includes:
(A) The legal name and physical address
of the proposed dispensary;
(B) The name, address, and date of
birth of each principal officer and each director, none of whom may have served
as a principal officer or director for a dispensary that has had its license
revoked; and
(C) Operating procedures that the
dispensary will use, consistent with commission regulations for oversight,
including storage of cannabis and products containing cannabis only in enclosed
and locked facilities.
(c) The commission shall:
(1) Establish an application review
process for granting dispensary licenses in which applications are reviewed,
evaluated, and ranked based on criteria established by the commission; and
(2) Actively seek to achieve geographic
diversity when licensing dispensaries.
(d) (1) Upon initial issuance, a
license to dispense medical cannabis shall be valid for four years.
(2) Upon renewal, a dispensary license
shall be valid for two years.
(e) A dispensary licensed under this
section or a dispensary agent registered under section eight of this article
may not be prosecuted or penalized under state law for acquiring, possessing,
processing, transferring, transporting, selling, distributing, or dispensing
cannabis, products containing cannabis, related supplies, or educational
materials for use by a qualifying patient or a caregiver in compliance with the
provisions of this article.
(f) The commission shall establish
requirements for security and product handling procedures that a dispensary
must meet to obtain a license under this section, including a requirement for a
product?tracking system.
(g) A dispensary licensed under this
section shall allow the Commission and its agents to inspect licensed
facilities at any time without the necessity of a warrant to ensure compliance
with this article.
(h) The commission may impose penalties
or rescind the license of a dispensary that does not meet the standards for
licensure set by the commission.
(i) Each dispensary licensed under this
section shall submit to the commission a quarterly report which shall include:
(1) The number of patients served;
(2) The county of residence of each
patient served;
(3) The medical condition for which
medical cannabis was recommended;
(4) The type and amount of medical
cannabis dispensed; and
(5) If available, a summary of clinical
outcomes, including adverse events and any cases of suspected diversion.
(j)(1) Except as provided by
subdivision (2) of this subsection, the commission may license no more than
sixty medical cannabis dispensaries;
(2) Beginning July 1, 2020, the
commission may issue the number of licenses necessary to meet the demand for
medical cannabis by qualifying patients and caregivers by an affordable,
accessible, secure and efficient manner.
(k) The quarterly report required by
the provisions of subsection (i) of this section shall not include personal
identifying information of qualifying patients.
?16-8A-8. Dispensary agents.
(a) A dispensary agent shall:
(1) Be at least twenty-one years old;
(2) Be registered with the commission
before the agent may volunteer or work for a dispensary; and
(3) Obtain state and national criminal
history records check in accordance with section twelve of this article.
(b) A dispensary shall apply to the
commission for a registration card for each dispensary agent by submitting the
name, address, and date of birth of the agent.
(c)(1) Within one business day after a
dispensary agent ceases to be associated with a dispensary, the dispensary
shall:
(A) Notify the commission; and
(B) Return the dispensary agent?s
registration card to the commission.
(2) On receipt of a notice described in
subdivision (1) of this subsection, the commission shall:
(A) Immediately revoke the registration
card of the dispensary agent; and
(B) If the registration card was not
returned to the commission, notify the Superintendent of the West Virginia
State Police.
(d) An individual who has been
convicted of a felony drug offense may not register as a dispensary agent.
?16-8A-9. Processors.
(a) The Commission is hereby authorized
to license processors of medical cannabis.
(b) To be licensed as a processor, an
applicant must submit to the commission:
(1) An application fee in an amount to
be determined by the commission in accordance with this article; and
(2) An application that includes:
(A) The legal name and physical address
of the proposed processor;
(B) The name, address, and date of
birth of each principal officer and director, none of whom may have served as a
principal officer or director for a licensee under this article that has had
its license revoked; and
(C) Operating procedures that the
processor will use, consistent with commission regulations for oversight,
including storage of cannabis, extracts, and products containing cannabis only
in enclosed and locked facilities.
(c) The commission shall establish an
application review process for granting processor licenses in which
applications are reviewed, evaluated, and ranked based on criteria established
by the commission.
(d)(1) Upon initial issuance, a
processor license shall be valid for four years.
(2) Upon renewal, a processor license
shall be valid for two years.
(e) A processor licensed under this
section or a processor agent registered pursuant to section ten of this article
may not be prosecuted or penalized under state law for acquiring, possessing,
processing, transferring, transporting, selling, distributing, or dispensing
cannabis, products containing cannabis, related supplies, or educational
materials for use by a licensee under this article or a qualifying patient or a
caregiver in compliance with the provisions of this article.
(f) The commission shall establish
requirements for security and product handling procedures that a processor must
meet to obtain a license under this section, including a requirement for a
product-tracking system.
(g) A processor licensed under this
section shall allow the commission or its agents to inspect licensed facilities
at any time without the necessity of a warrant to ensure compliance with this
article.
(h) The commission may impose penalties
or rescind the license of a processor that does not meet the standards for
licensure set by the commission.
?16-8A-10. Processor Agents.
(a) A processor agent shall:
(1) Be at least twenty-one years old;
(2) Be registered with the commission
before the agent may volunteer or work for a processor; and
(3) Obtain state and national criminal
history records check in accordance with section twelve of this article.
(b) A processor agent shall apply to
the commission for a registration card for each processor agent by submitting
the name, address, and date of birth of the agent.
(c)(1) Within one business day after a
processor agent ceases to be associated with a processor, the processor shall:
(A) Notify the commission; and
(B) Return the processor agent?s
registration card to the commission.
(2) On receipt of a notice described in
subdivision (1) of this subsection, the commission shall:
(A) Immediately revoke the registration
card of the processor agent; and
(B) If the registration card was not
returned to the commission, notify the Superintendent of the West Virginia State
Police.
(d) An individual who has been
convicted of a felony drug offense may not register as a processor agent.
?16-8A-11. Independent Laboratories.
(a) The commission shall register a
public criminal justice agency as the primary testing laboratory to test
cannabis and products containing cannabis that are to be sold in the state.
(b) The commission may register
additional private independent testing laboratories to test cannabis and
products containing cannabis that are to be sold in the state.
(c) To be registered as a private
independent testing laboratory, a laboratory shall:
(1) Meet the application requirements
established by the commission;
(2) Pay any applicable fee required by
the commission; and
(3) Meet the standards and requirements
for accreditation, inspection, and testing established by the commission.
(d) The commission shall adopt
regulations that establish:
(1) The standards and requirements to
be met by an independent laboratory to obtain a registration;
(2) The standards of care to be
followed by all testing laboratories;
(3) The initial and renewal terms for
an independent laboratory registration and the renewal procedure; and
(4) The bases and processes for denial,
revocation, and suspension of a registration of an independent testing
laboratory.
(d) The commission may inspect any
independent testing laboratory registered under this section to ensure
compliance with this article.
?16-8A-12. Criminal records check.
(a) The commission and the State Police
shall enter into a memorandum of understanding regarding criminal records
checks that include, at a minimum, the following:
(1) Any applicant is required to submit
to the State Police all information necessary to complete a nationwide
background check consisting of inquiries of the National Instant Criminal
Background Check System, the West Virginia criminal history record responses
and the National Interstate Identification Index;
(2) The applicant is required to pay
all fees associated with the background checks;
(3) The State Police shall complete the
background checks promptly upon receipt of all necessary information and fees;
and
(4) The State Police shall forward to
the commission and to the applicant the criminal history record information of
the applicant forthwith.
(b) Information obtained from the
background checks required under this section shall be:
(1) Confidential and may not be
disseminated other than as authorized in this section; and
(2) Used only for the registration
purpose authorized by this article.
(c) The subject of a criminal history
records check under this section may appeal the contents of the printed
statement issued, as authorized by relevant criminal history database.
?16-8A-13. Offenses; Exempted
behaviors.
(a) The following persons when acting
in strict compliance with the provisions of this article are not subject to
arrest, prosecution, civil or administrative penalty, including a civil penalty
or disciplinary action by a professional licensing board, or be denied any
right or privilege, for:
(1) A qualifying patient:
(A) In possession of an amount of
medical cannabis determined by the commission to constitute a thirty-day
supply; or
(B) In possession of an amount of
medical cannabis that is greater than a thirty-day supply if the qualifying
patient?s certifying physician stated in the written certification that a
thirty-day supply would be inadequate to meet the medical needs of the
qualifying patient;
(2) A grower licensed under section six
of this article or a grower agent registered under section six of this article;
(3) A certifying physician;
(4) A caregiver;
(5) A dispensary licensed under section
seven of this article or a dispensary agent registered under section eight of
this article;
(6) A processor licensed under section
nine of this article or a processor agent registered under section ten of this
article; or
(7) A hospital, medical facility, or
hospice program where a qualifying patient is receiving treatment.
(b)(1) No person who knowingly
distributes, possesses with intent to distribute or manufacture cannabis that
has been diverted in violation of the provisions of this article from a
qualifying patient, caregiver, licensed grower, or licensed dispensary.
(2) A person who violates this
subsection is guilty of a felony and, upon conviction, shall be imprisoned in a
state correctional facility for not less than one nor more than five years.
fined not more than $10,000, or both fined and imprisoned.
(3) The offense set forth in this
subsection is separate and distinct from other provisions of this code
prohibiting the manufacture, possession, or distribution of marijuana under
this code.
?16-8A-14. Conduct not protected.
(a) This article may not be construed
to authorize any individual to engage in, and does not prohibit the imposition
of any civil, criminal, or other penalties for, the following:
(1) Undertaking any task under the
influence of marijuana or cannabis, when doing so would constitute negligence
or professional malpractice;
(2) Operating, navigating, or being in
actual physical control of any motor vehicle, aircraft, or boat while under the
influence of marijuana or cannabis;
(3) Smoking marijuana or cannabis in
any public place;
(4) Smoking marijuana or cannabis in a
motor vehicle; or
(5) Except as provided in subsection
(b) of this section, smoking marijuana or cannabis on a private property that:
(A)(i) Is rented from a landlord; and
(ii) Is subject to a policy that
prohibits the smoking of marijuana or cannabis on the property; or
(B) Is subject to a policy that
prohibits the smoking of marijuana or cannabis on the property of an attached
multi-residence dwelling adopted by the council of unit owners, for entities
regulated by chapter thirty-six-a of this code, or the executive board of a
unit owners association, for entities regulated by chapter thirty-six-b of this
code.
(b) The provisions of subdivision (5),
subsection (a) of this section do not apply to vaporizing cannabis.
(c) This article may not be construed
to provide immunity or an affirmative defense to a person who violates the
provisions of this article from criminal prosecution for a violation of any law
prohibiting or regulating the use, possession, dispensing, distribution, or
promotion of controlled dangerous substances, dangerous drugs, detrimental
drugs, or harmful drugs, or any conspiracy or attempt to commit any of those
offenses.
(d) This article may not be construed
to require a hospital, medical facility, or hospice program to report to the
commission any disciplinary action taken by the hospital, medical facility, or
hospice program against a certifying physician, including the revocation of
privileges, after the registration of the certifying physician by the
commission.
(e) This article may not be construed
to prohibit a person from being concurrently licensed by the commission as a
grower, a dispensary, or a processor.
?16-8A-15. State employee actions and
federal law.
(a) Notwithstanding any provision of
this code to the contrary, a state employee who incurs counsel fees in
connection with a federal criminal investigation or prosecution solely related
to the employee?s good faith discharge of public responsibilities under this
article is eligible for reimbursement of counsel fees.
(b) The Governor may suspend
implementation of this article upon making a formal determination that there is
a reasonable chance of federal prosecution of state employees for involvement
with implementation of this article.
?16-8A-16. Rulemaking.
The commission may, in consultation
with the Secretary of the Department of Health and Human Resources and the
Commissioner of Agriculture, promulgate emergency rules pursuant to the
provisions of section fifteen, article three, chapter twenty-nine-a of this
code to implement the provisions of this article and shall, in consultation
with the Secretary of the Department of Health and Human Resources and the
Commissioner of Agriculture, subsequently propose rules for legislative
approval in accordance with the provisions of article three, chapter
twenty-nine-a of this code.
?16-8A-17. Specific effective date;
Requirements to be met prior to implementation of article.
(a)
The provisions of this section and sections one, two, three, twelve, fifteen
and sixteen of this article shall be effective from passage.
(b)
The provisions of sections four, five, six, seven, eight, nine, ten, eleven,
thirteen and fourteen of this article shall be effective on July 1, 2018.
(c)
The provisions of this article shall not be construed to make lawful or
otherwise authorize the growing, manufacturing, distribution, dispensing or
possession of cannabis until all sections are in effect and the commission
established by this article is fully operational.
??????????? On motion of Senator Stollings, the
following amendment to the Judiciary committee amendment to the bill (Com. Sub.
for S. B. 386) was reported by the Clerk:
On page
(g) Unless otherwise required by federal law or another section of this
code, drug screening tests in this state may no longer include a report on the
level of tetrahydrocannabinol (THC). If the commission determines that this
subsection needs clarification, it may propose legislative rules necessary to
implement the provisions of this subsection in accordance with the provisions
of article three, chapter twenty-nine-a of this code.
??????????? Following discussion,
??????????? The question being on the adoption
of Senator Stollings? amendment to the Judiciary committee amendment to the
bill, the same was put and did not prevail.
??????????? On motion of Senator Trump, the
following amendments to the Judiciary committee amendment to the bill (Com.
Sub. for S. B. 386) were next reported by the Clerk, considered simultaneously,
and adopted:
On page seven, section four, subsection (d), subdivision (1), paragraph
(B), after subparagraph (vi), by inserting in lieu thereof a new paragraph,
designated paragraph (C), to read as follows:
(C) Post-traumatic stress disorder.;
On page seven, section four, subsection (d), subdivision (1), by
striking out all of paragraph (C);
And,
On page nineteen, section thirteen, lines twenty through twenty-seven,
by striking out all of subsection (b) and inserting in lieu thereof a new
subsection, designated subsection (b), to read as follows:
(b) (1) A who knowingly distributes, possesses with intent to distribute
or manufactures cannabis that has been diverted in violation of the provisions
of this article from a qualifying patient, caregiver, licensed grower, or
licensed dispensary, is guilty of a felony and, upon conviction, shall be
imprisoned in a state correctional facility for not less than one nor more than
five years, fined not more than $10,000, or both fined and imprisoned.
(2) The offense set forth in this subsection is separate and distinct
from other provisions of this code prohibiting the manufacture, possession, or
distribution of marijuana under this code.
??????????? The question now being on the
adoption of the Judiciary committee amendment to the bill, as amended, the same
was put and prevailed.
There being no further amendments offered,
The bill, as just amended, was ordered to engrossment.
Engrossed
Pending extended discussion,
The question being ?Shall Engrossed
On the passage of the bill, the yeas were: Beach, Blair, Boso, Clements,
Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann, Maynard, Miller,
Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano, Rucker, Smith, Stollings,
Swope, Trump, Unger, Woelfel and Carmichael (Mr. President)?28.
The nays were: Azinger, Boley, Maroney, Sypolt, Takubo and Weld?6.
Absent: None.
So, a majority of all the members present and voting having voted in the
affirmative, the President declared the bill (Eng.
The following amendment to the title of the bill, from the Committee on
Eng. Com. Sub. for Senate Bill
386?A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new article,
designated ?16-8A-1, ?16-8A-2, ?16-8A-3, ?16-8A-4, ?16-8A-5, ?16-8A-6,
?16-8A-7, ?16-8A-8, ?16-8A-9, ?16-8A-10, ?16-8A-11, ?16-8A-12, ?16-8A-13,
?16-8A-14, ?16-8A-15, ?16-8A-16, and ?16-8A-17, all relating to creating the
West Virginia Medical Cannabis Act; defining terms; creating the West Virginia
Medical Cannabis Commission; setting forth members of the West Virginia Medical
Cannabis Commission; setting forth responsibilities for the West Virginia
Medical Cannabis Commission; creating a special revenue account known as the
West Virginia Medical Cannabis Commission Fund; requiring a portion of any
profit to be spend for specific programs; detailing the fund?s revenue sources
and disbursements; detailing requirements of the commission to implement the
provisions of the act; setting requirements for becoming a certifying
physician; authorizing the commission to approve physician applications for
certain medical conditions; requiring reporting to the Controlled Substances
monitoring database; setting out conditions for which cannabis may be used;
requiring certain annual reports to the Governor and Legislature; authorizing
the commission to license medical cannabis growers and grower agents that meet
certain requirements; setting forth certain parameters for licensed growers and
grower agents; requiring a certain percentage of licenses be granted to persons
in veterans agriculture programs; providing an exception for a qualifying
patient to grow a specified amount without a license; authorizing the
commission to license dispensaries and register dispensary agents; setting
forth certain requirements for dispensaries and dispensary agents setting an
initial limit on number of medical cannabis growers and dispensaries;
authorizing commission to license the number of growers and dispensaries
sufficient to meet demand as of July 1, 2020; authorizing the commission to
license medical cannabis processors and register processor agents; authorizing
testing laboratories; stating requirements for the commission?s registration of
independent laboratories; requiring the State Police and commission to enter a
memorandum of understanding for criminal records checks and setting forth basic
requirements; providing that certain persons licensed, registered and
authorized under the act may not be subject to arrest, prosecution or any civil
or administrative penalty, including a civil penalty or disciplinary action by
a professional licensing board, or be denied any right or privilege, for the
medical use of cannabis; creating a new criminal offense of distributing,
possessing, manufacturing or using cannabis that has been diverted from an
authorized medicinal use; specifically stating conduct related to cannabis that
is not protected by the provisions of the act; authorizing state employees to
recover certain counsel fees; empowering the Governor to suspend implementation
of the act if the Governor determines certain federal action may occur;
authorizing promulgation of emergency rules and the proposal of legislative
rules for approval by the Legislature; and establishing effective dates.
Ordered, That The Clerk communicate to the House of Delegates the action of the
Senate
Thereafter, at the request of Senator
Thereafter, at the request of Senator
Without objection, the Senate returned to the third order of business.
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2002?A Bill to amend and reenact ?16-2F-1,
?16-2F-2, ?16-2F-3, ?16-2F-4, ?16-2F-5, ?16-2F-6, and ?16-2F-8 and of the Code
of West Virginia, 1931, as amended; all relating to parental notification of
abortions performed on unemancipated minors; setting out legislative findings;
defining terms; clarifying parental notification requirements prior to
performing an abortion on an unemancipated minor; modifying waiver language;
providing exceptions; providing a judicial process to not permit parental notification;
requiring reporting; providing for disciplinary actions; and providing criminal
penalties.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body, to take effect
Eng.
Com. Sub. for House Bill 2109?A Bill to amend and reenact ?31-18E-9 of
the Code of West Virginia, 1931, as amended, relating to the West Virginia Land
Reuse Agency Authorization Act; including a municipal land bank as an agency
that may acquire property; providing that a municipal land bank may have the
right of first refusal to buy certain tax delinquent property, within municipal
limits, for taxes owed and any related fees before the tax delinquent property
is placed for public auction at tax sales.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
House Bill 2188?A Bill to amend and reenact ?18-21-2 of the Code
of West Virginia, 1931, as amended, relating to extending the length of time
for the special Community-Based Pilot Demonstration Project to Improve Outcomes
for At-Risk Youth.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2196?A Bill to amend and reenact ?18-2-25 of
the Code of West Virginia, 1931, as amended, relating to the secondary schools
athletic commission; and participation by home schooled students in
extracurricular activities.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2376?A Bill to amend and reenact ?5F-1-2 of the
Code of West Virginia, 1931, as amended; to amend and reenact ?5F-2-1 and
?5F-2-2 of said code; to amend and reenact ?9-5-11b and ?9-5-22 of said code;
to amend said code by adding thereto a new section, designated ?9-10-1; to
amend and reenact ?11-27-38 of said code; to amend and reenact ?11B-2-15 of
said code; to amend and reenact ?16-3-5 of said code; to amend and reenact
?16-5S-7 of said code; to amend and reenact ?33-25G-2 of said code; to amend
and reenact ?49-2-125 of said code; and to amend and reenact ?60A-9-5 of said
code; all relating to the organizational structure of state government;
providing that the Bureau for Medical Services be renamed the Department of
Medical Services with the Commissioner of the Bureau for Medical Services
becoming the Secretary of the Department of Medical Services; providing that
the department continue to operate as currently configured as the Bureau for
Medical Services with the structure of the Department of Health and Human
Resources for administrative support, interagency cooperation and program
support; removing the Human Rights Commission, Division of Human Services,
Bureau for Public Health, Office of Emergency Medical Services and the
Emergency Medical Service Advisory Council, Health Care Authority, Commission
on Mental Retardation, Women?s Commission and the Child Support Enforcement
Division from administration by the Department of Administration; providing
that the Bureau for Public Health, The Bureau for Child Support Enforcement,
The Bureau of Children and Families, The Office of the Inspector General, The
Health Care Authority, The State Commission on Intellectual Disability, The
Women?s Commission, The Commission for the Deaf and Hard of Hearing; and the
James H. ?Tiger? Morton Catastrophic Illness Commission are to be administered
as a part of the Department of Health and Human Resources; providing that the
Bureau of Medical Services and The Children?s Health Insurance Agency are
incorporated in and administered as a part of the Department of Medical
Services; and making technical changes in various chapters of the code to
reflect the creation of the Department of Medical Services.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2453?A Bill to amend and reenact ?19-12E-5 of
the Code of West Virginia, 1931, as amended, relating to expanding the list of
persons the Commissioner of Agriculture may license to grow or cultivate
industrial hemp.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2520?A Bill to amend and reenact ?16-45-3 and
?16-45-5 of the Code of West Virginia, 1931, as amended, relating to
prohibiting the use of a tanning device by a person under the age of eighteen.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2552?A Bill to amend and reenact ?19-14-4 and
?19-14-5 of the Code of West Virginia,1931, as amended, all relating to
temporarily increasing pet food registration fees; directing that the
additional money be deposited into the West Virginia Spay Neuter Assistance
Fund; requiring spay and neuter services purchased with these funds be
performed within the state.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2589?A Bill to amend the Code of West Virginia,
1931, as amended, by adding thereto a new section, designated ?18-5-15g,
relating to requiring county boards of education to permit students who are
homeschooled or attend private schools to enroll and take classes at the county?s
vocational school.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2654?A Bill to amend and reenact ?7-3-3 of the
Code of West Virginia, 1931, as amended, relating to expanding county
commissions? ability to dispose of county or district property; adding the
ability of county commissions to grant such property to 501(c)(3) tax exempt
organizations operated exclusively for charitable, educational or scientific
purposes; noting that such sales are not required to be made considering the
property?s present commercial or market value; setting a minimum value for such
sales; revising the requirement that property conveyed to volunteer fire
department or volunteer ambulance service reverts back to county commission
following termination of use to account for the 501(c)(3) tax exempt
organizations operated exclusively for charitable, educational or scientific
purposes; and, to provide that such reversionary right may be disclaimed by the
county commission .
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2704?A Bill to amend and reenact ?18A-3-6 and
?18A-3-10 of the Code of West Virginia, 1931, as amended, all relating
generally to the licensure or certification of teachers, providing that a
teacher convicted under chapter sixty-one, article eight-d, section five shall
have his or her certificate or license automatically revoked and permitting the
West Virginia Department of Education to require a licensee submit to
fingerprints that may be analyzed by the State Police for a state criminal
history record check through the central abuse registry and then forwarded to
the federal bureau of investigation for a national criminal history record
check when the licensee has lived outside of the state of West Virginia for a
period of one year or more since his or her licensure, or the West Virginia
Department of Education or the school administrator has a reasonable belief
that the licensee has not notified the school administrator of any felony
conviction, conviction of any offense under chapter sixty-one, article eight-b
of this Code, or offenses of similar nature to those in chapter sixty-one,
article eight-b of this Code that have been established under any other state or
the United States.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2711?A Bill to repeal ?18-2-26a of the Code of
West Virginia, 1931, as amended; to amend and reenact ?18-2-26 of said code; to
amend and reenact ?18-2E-5 of said code; to amend and reenact ?18-5-13 and
?18-5-45 of said code; to further amend said code by adding thereto two new
sections designated ?18-5-13b and ?18-5-13c; to amend and reenact ?18-9A-8a of
said code; and to amend and reenact ?18A-4-14 of said code, all relating
generally to education; repealing requirement for biennial meetings of county
boards by region; providing for dissolving regional educational service
agencies by certain date; allowing for modification and dissolving by
cooperative agreement before said date; providing for the transfer, liquidation
or disbursement of property and records; clarifying responsibilities and
authority of Legislature and state board with respect to process for improving
education and purposes and intent of system of accountability; requiring high
quality digital literacy skill standard; modifying statewide assessment
program; modifying annual performance measures for accreditation; requiring
county board use of statewide electronic information system; modifying process
for assessing school and school system performance; eliminating office of
education performance audits and authorizing employment of experienced
education professionals with certain duties; modifying school accreditation and
removing authorization for state board intervention in school operations;
modifying school system approval and processes for state board intervention;
modifying processes for improving capacity; modifying process for building
leadership capacity of system during intervention; expanding county board
authority for entering into cooperative agreements; establishing the County
Superintendents? Advisory Council; setting forth the council?s authority and
responsibilities, including the formation of four geographic quadrants to carry
out the work of the council; requiring certain meetings and reports; authorizing
county board agreements to establish educational services cooperatives;
providing references to regional education service agencies mean cooperatives;
providing priorities for transfer, liquidation and disbursement of regional
education service agency property, equipment and records upon dissolution;
providing for governing council of educational services cooperatives; providing
for powers and duties; providing for cooperative annual plan and optional
programs and services; providing for selection of fiscal agent county board and
annual audit; providing for staff and member expenses; providing for member
compensation; defining instructional day and instruction through alternative
methods; providing for increasing length of instructional day and uses of
instructional time gained; providing for use of instruction delivered through
alternative methods; providing flexibility in scheduling faculty senate
meetings; authorizing reduction in instructional term for certain emergency or
disaster declaration by Governor; reducing foundation allowance for regional
education service agencies; requiring planning period within school day, rather
than instructional day and encouraging districts and schools to develop and
execute planning period strategy; and making technical improvements and
removing obsolete provisions.
Referred to the Committee on Education; and
then to the Committee on Finance.
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2720?A Bill to amend and reenact (18-9D-3 and
?18-9D-9 of the Code of West Virginia, 1931, as amended; all relating to the
funding of the School Building Authority operational costs; continuing a special
revenue account.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2771?A Bill to amend and reenact ?18A-3-2a of
the Code of West Virginia,1931, as amended, relating to teaching certificates
for teachers whose spouses are members of the Armed Forces who are on active
duty stationed in this state or within fifty air miles of the West Virginia
border.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2781?A Bill to amend and reenact ?3-1-34 of the
Code of West Virginia, 1931, as amended; and to amend and reenact ?3-2-11 of
said code, all relating to voting procedures; setting forth the effective date
for voter identification requirements passed in the 2016 Legislative session;
removing the requirement that the Division of Motor Vehicles forward
information of persons who decline voter registration to the Secretary of
State; amending the effective date for voter registration requirements passed
in the 2016 Legislative session; and, providing that the Division of Motor
Vehicles shall report to the Joint Committee on Government and Finance by
January 1, 2018 with a full and complete list of all infrastructure they
require to achieve certain purposes.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2794?A Bill to amend and reenact ?46A-2-128 of
the Code of West Virginia, 1931, as amended, relating to the means of giving
notice to a debt collector of a consumer?s representation by legal counsel.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2804?A Bill to amend and reenact ?30-1-7a of
the Code of west Virginia, 1931, as amended, relating to continuing education
requirements; removing continuing education requirements; and removing outdated
provisions.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2815?A Bill to repeal ?18B-1-5a, 18B-1-8b,
18B-1-10 of the Code of West Virginia, 1931, as amended; to repeal ?18B-1A-3 of
said code; to repeal ?18B-1B-10 and ?18B-1B-13 of said code; to repeal ?18B-2-5
and ?18B-2-7 of said code; to repeal ?18B-5-2a of said code; to amend and
reenact ?18B-1-2 and ?18B-1-6 of said code; to amend and reenact ?18B-1B-1,
?18B-1B-2, ?18B-1B-4, and ?18B-1B-6 of said code; to amend and reenact
?18B-1D-2, ?18B-1D-4, and ?18B-1D-7 of said code; to amend and reenact
?18B-2A-3 and ?18B-2A-4 of said code; to amend and reenact ?18B-3-1 of said
code; to amend and reenact ?18B-4-7 of said code; to amend and reenact ?18B-5-4,
?18B-5-6, ?18B-5-7, and ?18B-5-9 of said code; to amend and reenact ?18B-10-1,
?18B-10-1c, ?18B-10-8, and ?18B-10-16 of said code; to amend and reenact
?18B-19-1, ?18B-19-3, ?18B-19-4, ?18B-19-5, ?18B-19-6, ?18B-19-7, ?18B-19-9,
?18B-19-10, ?18B-19-11, ?18B-19-13, and ?18B-19-14 of said code; and to amend
said code by adding thereto one new section, designated ?18B-19-19, all
relating to public education higher education governance generally; defining
terms; repealing obsolete provisions of code; clarifying scope of rule-making
authority of higher education policy commission and certain institutions of
higher education; eliminating outdated language; providing for rule-making
procedures; requiring promulgation of rules by commission, council and certain
institutions of higher education; providing for shorter time period for
commission and council to review and comment on rules proposed by governing
boards of institutions of higher education; providing legislative intent;
providing for composition of commission; providing for primary responsibility
of commission; updating and clarifying powers of commission; limiting authority
of commission over certain institutions of higher education; eliminating
authority of commission to assess institutions for payment of expenses of
commission and for funding of statewide higher education services, obligations,
or initiatives; clarifying authority of commission over review and approval of
academic programs; repealing and eliminating outdated language; eliminating authority
of commission with respect to certain financial and budget reviews and
approvals; expanding authority of certain governing boards over appointment of
president of certain higher education institutions; eliminating requirement for
approval by commission of appointment of president for certain institutions of
higher education; eliminating jurisdiction of commission relative to the
accountability system over certain institutions of higher education; providing
for updated responsibility of commission in development and advancement of
public policy agenda and collection of data for certain institutions of higher
education; eliminating certain reporting responsibilities for certain
institutions of higher education; altering authority of commission over institutional
compacts of certain institutions of higher education; eliminating requirement
for certain institutions of higher education to prepare an institutional
compact for submission to the commission; eliminating application of certain
data-based measures on certain institutions of higher education; altering
timeframe for updates to institutional compacts; eliminating commission
approval of institutional compacts of certain institutions of higher education;
eliminating authority of chancellor over coordination of policies, purposes and
rules of governing boards of certain institutions of higher education; updating
powers of governing boards; eliminating requirement of commission approval of
master plans for certain institutions of higher education; requiring certain
institutions to provide copies of master plan to Legislative Oversight
Commission on Educational Accountability; providing that rules of commission
and council related to administering a system for the management of personnel
matters do not apply to certain institutions of higher education; authorizing
governing boards to contract and pay for any supplemental employee benefit;
providing for legislative findings and purposes; clarifying authority of
certain governing boards to delegate authority to its president; clarifying
authority of commission and governing boards of certain institutions of higher
education with respect to development of rules for accreditation and
determination of minimum standards for conferring degrees; eliminating authority
of commission to revoke an institution?s authority to confer degrees when
governing board or chief executive officer do not provide certain information
to commission; eliminating applicability of certain commission and council
rules on certain institutions of higher education; requiring certain governing
boards to promulgate and adopt rules related to acquisitions and purchases;
clarifying authority of certain governing boards over certain purchasing
activities; authorizing prepayment by commission, council or governing boards
in certain instance; expanding scope of authorized purchasers on certain
purchase contracts; updating power of Joint Committee over performance audits
of purchasing; updating authority of commission, council and governing boards
over purchase card procedures; requiring certain governing boards to establish
purchasing card procedures; clarifying authority for state institutions to
enter into design-build contracts and other commonly accepted methods of
procurement and financing for construction projects; providing that
Design-Build Procurement Act does not apply to state institutions of higher
education; providing authority to donate equipment, supplies and materials to
not for profit entity to promote public welfare; updating certain best
practices applicable to ensuring fiscal integrity of institutions of higher
education; authorizing additional situation where emergency purchase card use
is permitted; authorizing different tuition and fees for online courses;
updating time frame for payment of fees by students; authorizing deposit of
certain fees into single special revenue account by certain institutions;
updating applicability of rule by commission and council for tuition and
deferred payment plans; authorizing certain governing board to proposed a rule
related to tuition and fee deferred payment plans; authorizing certain
governing boards to authorize a mandatory auxiliary fee without commission
approval; updating tuition and fee increase percentage that requires commission
or council approval; updating conditions commission or council are required to
consider in determining whether to approve a tuition or fee increase; revising
requirements and parameters for certain revenue bonds issued by certain
governing boards; updating approvals required for issuance of certain revenue
bonds by state institutions of higher education; providing for transfer and
deposit of certain fees by certain governing boards into single special revenue
account; requiring commission and council to develop system capital development
oversight policy and providing content for such policy; requiring each
governing board to adopt a campus development plan; updating time frame for
reporting to commission and council on campus development plans; eliminating
requirement for commission approval of campus development plans of certain
governing boards; providing for content of campus development plans;
eliminating commission approval over certain capital and maintenance project
lists; authorizing certain governing boards to undertake projects not contained
in campus development plan; eliminating certain commission approvals related to
capital improvements for certain institutions; authorizing capital improvements
to be funded through notes; updating conditions to be met for certain
institutions to be responsible for capital project management; updating
requirements for capital project management rule to be promulgated and adopted
by certain governing boards; providing updated applicability and functions of
higher education facilities information system; eliminating certain
requirements related to leasing of real property by commission, council, and
governing boards; updating requirements for use of appraisals in connection
with sale of real property; updating permitted uses of proceeds from sale,
conveyance or other disposal of real property received by commission, council
or a governing board; authorizing certain governing boards to enter into
lease-purchase agreements in certain instances without commission approval;
eliminating requirement of commission approval for certain real estate and
construction transactions; and requiring certain governing boards to provide
certain information to commission.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
House Bill 2878?A Bill to amend and reenact ?17-17A-1 of the Code
of West Virginia, 1931, as amended, relating to increasing the amount of
authorized Federal Grant Anticipation Notes the Division of Highways may apply
for from $200 million to $500 million.
At the request of Senator
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2887?A Bill to amend and reenact ?18B-1-1d of the
Code of West Virginia, 1931, as amended, relating to retirement and separation
incentives.
Referred to the Committee on Education.
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2897?A Bill to amend and reenact ?5-22-1 of the
Code of West Virginia, 1931, as amended, to amend and reenact ?8-16-5 of said
code; to amend and reenact ?16-12-11 of said code; to amend and reenact ?16-13-3
of said code; to amend and reenact ?16-13A-7 of said code; to amend and reenact
?21-1D-5; and to amend and reenact ?21-11-11 of said code, all relating to
competitive bidding in construction contracts.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2930?A Bill to amend the Code of West Virginia,
1931, as amended, by adding thereto a new section, designated ?29-22-15a; and
to amend and reenact ?29B-1-4 of said code, all relating to allowing powerball,
hot lotto, and mega millions winners to remain anonymous; providing that a
person entitled to collect proceeds exceeding one million dollars from a
winning powerball, hot lotto, or mega millions may remain anonymous in regards
to his or her name, personal contact information, and likeness; providing that
if a person entitled to collect proceeds exceeding one million dollars from a
winning powerball, hot lotto, or mega millions ticket wishes to remain
anonymous, then he or she shall contact the State Lottery Director in writing
or appear at the state lottery headquarters in person; providing where such
request to remain anonymous may be mailed or emailed; providing that upon such
a request, the director will contact the person requesting anonymity and
schedule an appointment to meet; establishing an effective date of January 1,
2018; and providing for an exemption under the Freedom of Information Act for
the name, personal contact information, and likeness of a person entitled to
collect proceeds exceeding one million dollars from a winning powerball, hot
lotto, or mega millions ticket.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2941?A Bill to amend and reenact ?17-2A-7 and
?17-2A-8 of the Code of West Virginia, 1931, as amended, all relating to the
Division of Highways utilization of the Attorney General for legal services;
requiring the Commissioner of the Division of Highways to utilize the Attorney
General for all legal assistance and services; and providing for exceptions.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 2961?A Bill to amend and reenact ?47-20-23 and
?47-20-31 of the Code of West Virginia, 1931, as amended; and to amend and
reenact ?47-21-21 and ?47-21-30 of said code, all relating to appeals of
certain administrative actions taken by the Tax Commissioner affecting certain
charitable bingo or charitable raffle licensees.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
House Bill 2962?A Bill to amend and reenact ?11-1-1 of the Code of
West Virginia, 1931, as amended, relating to enlarging the authority of the Tax
Commissioner to perform background investigations of employees and contractors;
and making technical corrections.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
House Bill 2963?A Bill to amend and reenact ?11-11-17a of the Code
of West Virginia, 1931, as amended; relating to terminating on a certain date
provisions by which domiciliary personal representatives of nonresident
decedents may apply for certain releases.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
House Bill 2967?A Bill to amend and reenact ?44-3A-3 of the Code
of West Virginia, 1931, as amended, relating generally to administration of
estates and trusts; transferring to county commissions duty to administer
fiduciary supervisor/fiduciary commissioner qualifying test and provide annual
training seminar.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
House Bill 3022?A Bill to amend the Code of West Virginia, 1931,
as amended, by adding thereto a new section, designated ?30-1-5a, relating to
the reporting of fraud, misappropriation of moneys, and other violations of law
to the commission on special investigations.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
House Bill 3037?A Bill to amend and reenact ?5B-2F-2 of the Code
of West Virginia, 1931, as amended; and to amend and reenact ?5D-1-4 of said
code, all relating to removing the Division of Energy as an independent agency;
redesignating the Division of Energy as the Office of Energy within the
Development Office of the Department of Commerce; and designating the Secretary
of Commerce, or his or her designee as the Chair of the West Virginia Public
Energy Authority Board.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 3048?A Bill to amend and reenact ?15-5A-5 of
the Code of West Virginia, 1931, as amended, relating to collection of Tier II
fees for chemical inventories.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
House Bill 3091?A Bill to amend and reenact ?11-21-74 of the Code
of West Virginia, 1931, as amended, relating generally to employer withholding
taxes; changing due date for employers to file annual reconciliation and
withholding statements with Tax Commissioner to January 31, requiring certain
employers to file W-2 information electronically with the Tax Commissioner; and
deleting obsolete language.
Referred to the Committee on
A message from The Clerk of the House of
Delegates announced the passage by that body and requested the concurrence of
the Senate in the passage of
Eng.
Com. Sub. for House Bill 3095?A Bill to amend ?18-7A-13a of the Code of
West Virginia, 1931, as amended, relating to allowing retired teachers to be
subsequently employed by the Higher Education Policy Commission or the council
for community and technical college education without any loss of retirement
annuity or retirement benefits under certain circumstances.
Referred to the Committee on
The Senate proceeded to the thirteenth order of business.
At the request of Senator
At the request of Senator
At the request of Senator Smith, and by unanimous consent, the Senate
returned to the twelfth order of business.
Remarks were made by
Thereafter, at the request of Senator
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator
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