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WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTIETH LEGISLATURE

REGULAR SESSION, 2012

FIFTY-NINTH DAY

____________

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

The Senate met at 11 a.m.

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

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

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

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

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

The Senate then proceeded to the third order of business.

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

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

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

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

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

And,

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

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

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

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

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

The nays were: None.

Absent: None.

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

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

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

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

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

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

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

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

And,

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

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

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

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

The nays were: None.

Absent: None.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§64-6-1. State Police.

(a) The legislative rule filed in the State Register on July25, 2011, authorized under the authority of section twenty-five,article two, chapter fifteen of this code, modified by the StatePolice to meet the objections of the Legislative Rule-Making ReviewCommittee and refiled in the State Register on January 6, 2012,relating to the State Police (West Virginia State Police CareerProgression System, 81 CSR 3), is authorized.

(b) The legislative rule filed in the State Register on July25, 2011, authorized under the authority of section forty-eight,article fifteen, chapter seventeen-c of this code, modified by theState Police to meet the objections of the Legislative Rule-MakingReview Committee and refiled in the State Register on January 6,2012, relating to the State Police (West Virginia State PoliceModified Vehicle Inspection Manual, 81 CSR 4), is authorized, withthe following amendment:

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

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

(a) The legislative rule filed in the State Register on July28, 2011, authorized under the authority of section three, articletwenty-nine, chapter thirty of this code, modified by theGovernor’s Committee on Crime, Delinquency and Correction to meetthe objections of the Legislative Rule-Making Review Committee andrefiled in the State Register on January 3, 2012, relating to theGovernor’s Committee on Crime, Delinquency and Correction (law-enforcement training standards, 149 CSR 2), is authorized.

(b) The legislative rule filed in the State Register on July28, 2011, authorized under the authority of section eleven, articleone-a, chapter sixty-two of this code, modified by the Governor’sCommittee on Crime, Delinquency and Correction to meet theobjections of the Legislative Rule-Making Review Committee andrefiled in the State Register on January 3, 2012, relating to theGovernor’s Committee on Crime, Delinquency and Correction (motorvehicle search standards, 149 CSR 6), is authorized.

§64-6-3. Division of Corrections.

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

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

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

The nays were: None.

Absent: None.

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

Senator Unger moved that the bill take effect from passage.

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

The nays were: None.

Absent: None.

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

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

A message from The Clerk of the House of Delegates announcedthe amendment by that body, passage as amended, and requested theconcurrence of the Senate in the House of Delegates amendments, asto

Eng. Senate Bill No. 331, Providing certain persons residingwith crime victims prosecutorial notification and right to be heardat sentencing and parole proceedings.

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

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

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

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

And,

On page eight, section twenty-three, lines twenty-five throughtwenty-seven, by striking out the words “nonrelated person whor*sided with the victim for at least twelve months preceding thecrime” and inserting in lieu thereof the words “adult householdmember residing with the victim”.

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

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

The nays were: None.

Absent: None.

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

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

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

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

Eng. Com. Sub. for Senate Bill No. 362, Authorizing bondissuance for Cacapon Resort State Park and Beech Fork State Parkcapital improvements.

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

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

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

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

CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 22. STATE LOTTERY ACT.

§29-22-18e. Increase in allocation to State Park Improvement Fundfrom State Excess Lottery Revenue Fund to permitthe issuance of bonds for improvements to CacaponResort State Park and Beech Fork State Park.

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

CHAPTER 31. CORPORATIONS.

ARTICLE 15. WEST VIRGINIA ECONOMIC DEVELOPMENT AUTHORITY.

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

(a) (1) The Economic Development Authority shall, inaccordance with the provisions of this article, issue revenuebonds, in one or more series, from time to time, to pay for all ora portion of the cost of constructing, equipping, improving ormaintaining capital improvement projects under this section or torefund the bonds, at the discretion of the authority. Theprincipal amount of the bonds issued under this section shall notexceed, in the aggregate principal amount of $52.5 million. Anyrevenue bonds issued on or after the effective date of this sectionwhich are secured by lottery proceeds shall mature at a time ortimes not exceeding thirty years from their respective dates. Theprincipal of, and the interest and redemption premium, if any, onthe bonds shall be payable solely from the Cacapon and Beech ForkState Parks Lottery Revenue Debt Service Fund established in thissection.

(2) There is hereby created in the State Treasury a specialrevenue fund named the “Cacapon and Beech Fork State Parks LotteryRevenue Service Fund” into which shall be deposited those amountsspecified in section eighteen-e, article twenty-two, chaptertwenty-nine of this code. All amounts deposited in the fund shallbe pledged to the repayment of the principal, interest andredemption premium, if any, on any revenue bonds or refundingrevenue bonds authorized by this section. The authority mayfurther provide in the trust agreement for priorities on therevenues paid into the Cacapon and Beech Fork State Parks LotteryRevenue Debt Service Fund as may be necessary for the protection ofthe prior rights of the holders of bonds issued at different timesunder the provisions of this section. The Cacapon and Beech ForkState Parks Lottery Revenue Debt Service Fund shall be pledgedsolely for the repayment of bonds issued pursuant to this section. On or prior to May 1 of each year, commencing May 1, 2014, theauthority shall certify to the state lottery director the principaland interest and coverage ratio requirements for the followingfiscal year on any revenue bonds or refunding revenue bonds issuedpursuant to this section, and for which moneys deposited in theCacapon and Beech Fork State Parks Lottery Revenue Debt ServiceFund have been pledged, or will be pledged, for repayment pursuantto this section.

(3) After the authority has issued bonds authorized by thissection, and after the requirements of all funds have beensatisfied, including coverage and reserve funds established inconnection with the bonds issued pursuant to this section, anybalance remaining in the Cacapon and Beech Fork State Parks LotteryRevenue Debt Service Fund may be used for the redemption of any ofthe outstanding bonds issued under this section which, by theirterms, are then redeemable or for the purchase of the outstandingbonds at the market price, but not to exceed the price, if any, atwhich redeemable, and all bonds redeemed or purchased shall beimmediately canceled and shall not again be issued.

(b) The authority shall expend the bond proceeds, net ofissuance costs, reserve funds and refunding costs, for certifiedcapital improvement projects at Cacapon Resort State Park and BeechFork State Park. The Division of Natural Resources shall submit aproposed list of capital improvement projects to the Governor on orbefore January 1, 2013. Thereafter, the Governor shall certify tothe authority on or before February 1, 2013, a list of thosecapital improvement projects at Cacapon Resort State Park and BeechFork State Park that will receive funds from the proceeds of bondsissued pursuant to this section.

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

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

(d) The bonds and the notes shall be authorized by theauthority pursuant to this section, and shall be secured, be insuch denominations, may bear interest at such rate or rates,taxable or tax-exempt, be in such form, either coupon orregistered, carry such registration privileges, be payable in suchmedium of payment and at such place or places and such time ortimes and be subject to such terms of redemption as the authoritymay authorize. The bonds and notes of the authority may be sold bythe authority, at public or private sale, at or not less than theprice the authority determines. The bonds and notes shall beexecuted by manual or facsimile signature by the chairman of theboard, and the official seal of the authority or a facsimilethereof shall be affixed to or printed on each bond and note andattested, manually or by facsimile signature, by the secretary ofthe board, and any coupons attached to any bond or note shall bearthe manual or facsimile signature of the chairman of the board. Incase any officer whose signature, or a facsimile of whosesignature, appears on any bonds, notes or coupons ceases to be suchofficer before delivery of such bonds or notes, such signature orfacsimile is nevertheless sufficient for all purposes the same asif he or she had remained in office until such delivery; and, incase the seal of the authority has been changed after a facsimilehas been imprinted on such bonds or notes, such facsimile seal willcontinue to be sufficient for all purposes.;

And,

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

Eng. Com. Sub. for Senate Bill No. 362--A Bill to amend theCode of West Virginia, 1931, as amended, by adding thereto a newsection, designated §29-22-18e; and to amend said code by addingthereto a new section, designated §31-15-16b, all relating toauthorizing the issuance of $52.5 million in bonds for capitalimprovements for Cacapon Resort State Park and Beech Fork StatePark beginning in fiscal year 2013; providing that the debt serviceon the bonds is payable from an additional allocation to from theState Excess Lottery Revenue Fund; providing that the EconomicDevelopment Authority may issue the bonds under certaincirc*mstances; and creating the Cacapon and Beech Fork State ParksLottery Revenue Debt Service Fund.

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

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

Pending discussion,

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

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

The nays were: Sypolt--1.

Absent: None.

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

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

Eng. Com. Sub. for Senate Bill No. 369, Permitting DeputySheriff Retirement System retirants to modify benefit options upondivorce.

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

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

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

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

And,

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

Eng. Com. Sub. for Senate Bill No. 369--A Bill to amend andreenact §7-14D-12 of the Code of West Virginia, 1931, as amended,relating to modifying the Deputy Sheriff Retirement System to allowa retirant upon divorce, annulment or remarriage to change theretirement benefit options under certain circ*mstances; andprohibiting causes of action against the board based upon suchchanges.

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

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

The nays were: None.

Absent: None.

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

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

A message from The Clerk of the House of Delegates announcedthe amendment by that body, passage as amended, to take effect July1, 2012, and requested the concurrence of the Senate in the Houseof Delegates amendment, as to

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

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

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

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

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

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

The nays were: None.

Absent: None.

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

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

The nays were: None.

Absent: None.

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

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

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

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

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

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

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

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

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

ARTICLE 12. PROBATION AND PAROLE.

§62-12-12. Parole board generally.

There shall be a state board of parole, known as (a) The WestVirginia Parole Board is continued. The board shall consist ofnine members, each of whom shall have been a resident of this statefor at least five consecutive years prior to his or herappointment. No more than five of the board members may at any onetime belong to the same political party. The board shall beappointed by the Governor, by and with the advice and consent ofthe Senate.

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

(c) Any person initially appointed to the board on or afterJuly 1, 2012, shall have at least a baccalaureate degree from anaccredited college or university institution and at least fiveyears of actual experience in the fields of penology, corrections,law enforcement, sociology, law, education, psychology, socialwork, medicine or a combination thereof Each member of the boardshall have a degree in criminal justice, sociology, law, education,psychology, social work, or medicine, or like experience andacademic training and shall be otherwise competent to perform theduties of his or her office. The members shall be appointed foroverlapping terms of six years. Any member qualified under thissection is Members are eligible for reappointment. The members ofthe board shall devote their full time and attention to their boardduties. The Governor shall appoint one of the nine appointedmembers to serve as chairperson at the Governor’s will andpleasure.

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

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

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

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

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

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

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

ARTICLE 27. BOARD OF BARBERS AND COSMETOLOGISTS.

§30-27-10. Professional license and certificate renewalrequirements.

(a) A professional licensee and certificate holder shallannually or biennially on or before January 1, renew his or herprofessional license or certificate by completing a form prescribedby the board, paying the renewal fee and submitting any otherinformation required by the board.

(b) The board shall charge a fee for each renewal of a licenseor certificate, and a late fee for any renewal not paid by the duedate.

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

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

And,

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

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

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

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

The nays were: None.

Absent: None.

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

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

The nays were: None.

Absent: None.

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

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

Eng. Senate Bill No. 436, Facilitating collaboration betweenpublic school and higher education systems to promote seamlesscurricula.

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

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

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

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

CHAPTER 18. EDUCATION.

ARTICLE 2. STATE BOARD OF EDUCATION.

§18-2-10. Certificates and awards.

The State Board of Education shall make promulgate rules andregulations and shall determine the minimum standards for thegranting of certificates and awards for secondary vocationaleducation, adult basic education, adult occupational education andadult technical preparatory education, subject to the provisions ofsection two, article two-b of this chapter and article three-a ofchapter eighteen-b of this code.

The State Board shall provide a program of adult basiceducation at each state community and technical college campuswhere developmental education services are provided in cooperationwith the West Virginia Council for Community and Technical CollegeEducation and the institutional board of governors of each college.This approach to providing adult basic education links theseprograms with developmental education and creates a simpler,clearer pathway for adults to enter college.

ARTICLE 2B. AREA VOCATIONAL PROGRAM.

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

The aims and purposes of the area vocational educationalprogram shall be are to provide vocational training or retrainingon an organized basis designed to prepare individuals for usefulemployment in recognized occupations. The program shall be madeavailable to residents of West Virginia in an area or areasdesignated and approved by the West Virginia board of vocationaleducation State Board.

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

(a) The State Board may establish, operate and maintain areavocational educational programs including the acquisition bypurchase, lease, gift or otherwise of necessary lands and theconstruction, expansion, remodeling, alteration and equipping ofnecessary buildings for the purpose of operating and conductingeducational training centers.

(b) The State Board may delegate its operational authority formulticounty vocational centers to an administrative councilcomposed of equal representation from each of the participatingcounty boards of education, the superintendent of schools from eachparticipating county, and the state director of vocationaleducation or his or her representative. To this end, there ishereby expressly established in the State Board a division ofvocational education which shall determine the area or areas inwhich the programs are to be conducted and is authorized topromulgate rules necessary to carry out the provisions of thisarticle, pursuant to article three-b, chapter twenty-nine-a of thiscode. The director of the division of vocational educationadministers and supervises the area vocational educationalprograms.

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

There is hereby established a fund to be known as the AreaVocational Education Program Fund for Secondary Education. Thereis hereby established a separate fund to be known as the AreaVocational Education Program Fund for Post-Secondary VocationalEducation. All moneys appropriated for such purpose by theLegislature as well as any gifts or grants made to the appropriatefund by any governmental subdivision of the state or by the UnitedStates government or by any individual, firm or corporation, tocarry out the provisions of this article shall be expended by theState Board. of Education or the board of directors, as the casemay be.

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

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

§18-2B-7. Transportation of students.

The State Board of vocational education is hereby authorizedand empowered to may pay for the transportation of any certifiedunemployed person participating in any area vocational educationalprogram during the period of time that he or she is engaged in saidthe training program at any of the instructional centers.

ARTICLE 13. West Virginia EDGE.

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

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

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

(b) To provide the opportunity for these students to earncommunity and technical college credit free-of-charge for theduplicated secondary and post-secondary courses identified duringthe curriculum alignment process.

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

In order to serve the citizens of the state by promoting ahigher college-going rate, reducing the time and cost for studentsto obtain college credentials and expanding opportunities foreconomic development, the West Virginia EDGE initiative shall meetthe following goals:

(1) Create incentives for more students to continue theireducation beyond high school by providing all students withinformation about and access to courses that will prepare them tomeet college-level standards;

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

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

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

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

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

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

(b) The duties of State Tech-Prep Coordinator include, but arenot limited to, the following:

(1) Developing a collaborative agreement with the facilitatingstate community and technical college or colleges in eachconsortium district and with the Council for Community andTechnical College Education to meet the goals and objectives ofthis article.

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

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

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

(3) Assuring that coordinators in the district consortiaprepare and retain reliable supporting source documents necessaryto validate the data included with the state electronic database;

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

(5) Collecting data relevant to the goals and objectivesestablished for this initiative, analyzing the data, and preparinga report for the Legislative Oversight Commission on EducationAccountability by December 1, 2012, and annually thereafter. Thespecific focus of the report is the analysis of data on programoutcomes to demonstrate to what degree the initiative has met thegoals and objectives of this article.

§18-13-4. Joint rule required.

The State Board and the West Virginia Council for Communityand Technical College Education, created in section three, articletwo-b, chapter eighteen-b of this code, shall promulgate a jointlegislative rule in accordance with article three-b, chaptertwenty-nine-a of this code, for the administration of West VirginiaEDGE. This rule shall incorporate strategies designed to achievethe overall goals of the program, methods of operation, andstep-by-step procedures for achieving the objectives outlined insection two and for implementing the reporting and accountabilitymeasures set forth in section three of this article.

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

The Legislature recognizes the importance of the West VirginiaEdge Program and will endeavor to provide sufficient funds to meetprogram goals and objectives. However, funding is subject toappropriation by the Legislature and nothing in this articlerequires any specific level of appropriation.

CHAPTER 18B. HIGHER EDUCATION.

ARTICLE 3B. COLLABORATIVE DEGREE COMPLETION PROGRAM.

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

(a) The Legislature makes the following findings:

(1) Evidence from national studies shows clearly that the needto increase the number of Americans who hold post-secondarycredentials has reached a critical point. According to CompleteCollege America, the United States has fallen from its long-heldposition as first among the nations and now ranks tenth in thepercentage of young adults with a college degree. Even morediscouraging is the statistic which shows that, for the first timein national history, the current generation of college-ageAmericans will be less educated than their parents’ generation.

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

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

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

(C) Lack of knowledge among students and parents aboutfinancial aid opportunities that can help them and their familiesdefray the cost of attending college.

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

(4) Currently, a severe gap exists between the demands fortechnically skilled workers in West Virginia and the aspirationsand programmatic focus of many of our students. Nearly thirtypercent of the state’s high school students have failed to enrollin either the pre-baccalaureate professional pathway or the careerand technical education skilled pathway. Most of these individualscould be better served in a focused program of study that begins inthe public schools and makes a seamless transition to the post-secondary level in the state community and technical colleges.

(5) The best way to promote this focus on career goals amongour students is through implementation of career pathways. This isan integrated collection of programs and services intended todevelop students’ core academic, technical and employabilityskills; provide them with continuous education and training; andplace them in high-demand, high-opportunity jobs.

(6) In West Virginia, preparing students to achieve higherlevels of education is a responsibility shared among the stateagencies responsible for providing education and workforcedevelopment training. Since increasing the education level ofstate citizens enhances West Virginia’s economic future and thegeneral well-being of its citizens, providing additionalopportunities to earn a college credential is the responsibility ofall public secondary education and state institutions of highereducation.

(b) It is the intent of the Legislature to encompass theentire public higher education system to remove those obstaclesthat block these pathways to college completion and to directagencies and institutions to collaborate and cooperate to deliverneeded services. Therefore, the object of this article istwo-fold:

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

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

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

(a) The Collaborative Degree Completion Program is herebyestablished as a collaborative partnership which includes thefollowing:

(1) The public school career and technical centers whichincludes state technology centers, technical centers, careercenters and career/technical centers; and

(2) The state community and technical colleges.

(b) The program shall meet the following objectives:

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

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

(3) Delivering post-secondary technical education in the mosteffective and cost efficient manner by maximizing the availableresources of career centers and community and technical colleges.

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

(1) Identify post-secondary adult career-technical educationprograms offered by the public school career centers that are to beevaluated for delivery as a Certificate of Applied Science or anAssociate of Applied Science Degree;

(2) Ensure that all collaborative programs meet the conditionsof the Higher Learning Commission of the North Central Associationof Schools and Colleges which is the accrediting body for statecommunity and technical colleges;

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

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

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

Members of each community and technical college/career andtechnical education consortia planning district shall enter into anagreement that delineates the division of responsibilities amongthe facilitating community and technical college pursuant tosection four, article three-c of this chapter and the career andtechnical centers, including activities for which these entitiesare jointly responsible.

(a) The following activities are the responsibility of thefacilitating community and technical college in each consortiaplanning district:

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

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

(3) Deliver all program general education courses;

(4) Award the appropriate degree;

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

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

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

(8) Pay the career and technical center for technical facultytime.

(b) The following activities are the responsibility of eachcareer and technical center within the consortium planningdistrict:

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

(2) Maintain equipment and laboratories and provide adequateinstructional space if the program is delivered onsite at thecareer and technical center; and

(3) Employ technical content faculty, if needed. Ifparticipants choose, these faculty members may be provided by thefacilitating community and technical college.

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

(1) Maintain programmatic accreditation, if required;

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

(3) Determine admission standards and student acceptance intothe programs;

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

(5) Develop and implement a program of cross counseling inwhich counselors from secondary and post-secondary career andtechnical centers and state community and technical colleges meetwith students and their parents, beginning in the eighth grade toanswer their education and career-related questions, to serve as asource of support through high school graduation and to providespecific, targeted information on career pathways and financial aidopportunities; and

(6) Determine the feasibility of collaboratively developingand implementing post-secondary-level programs to extend highschool programs that currently are terminal.

ARTICLE 3C. COMMUNITY AND TECHNICAL COLLEGE SYSTEM.

§18B-3C-1. Legislative findings.

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

(1) Community and technical colleges are a distinctivelyAmerican invention. They fill a critical gap between publicsecondary education and the baccalaureate institutions anduniversities and they provide a connection between adult basiceducation and higher education. Their overriding mission is toprovide affordable access to post-secondary education and toprovide this education and related services to people who otherwisemight not have enrolled in a college or university. They provideaccess to students who live in geographic proximity and who seeklow-cost post-secondary education.

(2) As the state’s primary provider of workforce education andtraining, community and technical colleges located in every regionof West Virginia are essential to a statewide strategy to preparestudents for high-demand, high-wage jobs, workforce developmentnecessary to diversify and grow the state’s economy, and furtherpost-secondary education and life long learning.

(3) The mission of state community and technical colleges isto provide comprehensive education services that combine thecritical functions of career-technical education and work forcedevelopment, non-credit industry training, transfer education,developmental education and continuing education.

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

(b) In carrying out their mission, the governing boards of thecommunity and technical colleges shall collaborate with public highschools and career and technical centers to deliver serviceseffectively and efficiently in the locations where they are neededmost.

§18B-3C-2. Legislative intent.

The following comprise the intent of the Legislature inenacting this article:

(a) To establish community and technical college educationthat is well articulated with the public schools, the career andtechnical education centers and other state institutions of highereducation; that encourages traditional and nontraditional studentsand adult learners to pursue a lifetime of learning; that serves asan instrument of economic development; and that has theindependence and flexibility to respond quickly to changing needsof citizens and employers in the state;

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

(c) To define the full range of programs and services thateach community and technical college has the responsibility toprovide; and

(d) To establish other policies and procedures necessary toensure that the needs of West Virginia, its people and itsbusinesses are met for the programs and services that can beprovided through a comprehensive system of community and technicalcolleges.

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

(a) Unless otherwise designated, the presidents of each thecommunity and technical college facilitates colleges facilitate theformation of community and technical college/career and technicaleducation consortia in the state. which Each consortium includesrepresentatives of community and technical colleges, publicvocational-technical career and technical education centers andpublic state baccalaureate institutions offering associate degrees. The community and technical college consortium shall consortium isresponsible for carrying out the following actions:

(1) Complete Completing a comprehensive assessment of thedistrict to determine what education and training programs arenecessary to meet the short- and long-term workforce developmentneeds of the district;

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

(3) Plan and develop Planning and developing a unified effortbetween the community and technical colleges and publicvocational-technical career and technical education to meet thedocumented workforce development needs of the district throughindividual and cooperative programs; shared facilities, faculty,staff, equipment and other resources; and the development and useof distance learning and other education technologies;

(4) Collaborating and developing jointly the collaborativeprogramming for adults between the community and technical collegesand the public career and technical centers. The focus of thesecollaborative efforts is the development of advanced skillprogramming that builds on the secondary curriculum and allowscareer and technical education graduates to acquire more in-depthpreparation in their occupational area of interest;

(4) Regularly review and revise

(5) As a consortium, regularly reviewing and revisingcurricula to ensure that the work force needs are met; developdeveloping new programs and phase out or modify phasing out ormodifying existing programs, as appropriate, to meet such needs;and streamline streamlining procedures for designing andimplementing customized training programs;

(5) Increase

(6) Increasing the integration of secondary and post-secondarycurriculum and programs that are targeted to meet regional labormarket needs, including implementation of seamless curriculaprojects implementing seamless programs of study, in all majorcareer pathways including West Virginia EDGE, Earn a Degree,Graduate Early Program and the Collaborative Degree CompletionProgram:

(A) Research shows that well-planned, well-coordinatedprograms of study have a positive impact on school attendance,student grades, achievement scores, retention rates and careerplanning. To be successful, programs of study must includecoherent and rigorous content aligned with challenging academicstandards and relevant career and technical education content. They must provide for student movement through a coordinated,nonduplicative progression of courses that align secondaryeducation with community and technical college education to preparestudents to succeed at the community and technical college leveland in high-wage, high-demand occupations;

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

(C) The initial consortium compact and each annual updaterequired in subsection (d) of this section shall identify theprograms of study that are to be implemented in the districtservice area;

(6) Planning and implementing

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

(7) Ensure

(8) Ensuring that program graduates have attained thecompetencies required for successful employment through theinvolvement of business, industry and labor in establishing studentcredentialing;

(8) Performance assessment of

(9) Assessing student knowledge and skills which may be gainedfrom multiple sources so that students gain credit toward programcompletion and advance more rapidly without repeating course workin which they already possess competency;

(9) Cooperate

(10) Cooperating with workforce investment boards inestablishing to establish one-stop-shop career centers withintegrated employment and training and labor market informationsystems that enable job seekers to assess their skills, identifyand secure needed education training, and secure employment, andthat allow employers to locate available workers;

(10) Increase

(11) Increasing the integration of adult literacy, adult basiceducation, federal Work Force Investment Act and community andtechnical college programs and services to expedite the transitionof adults from welfare to gainful employment, and includingcooperating with the State Department of Education to provide adultbasic education programs on each community and technical collegecampus in the state where developmental education services areprovided; and

(11) Establish

(12) Establishing a single point of contact for employers andpotential employers to access education and training programsthroughout the district.

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

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

(1) Northern Panhandle Community and Technical CollegeDistrict includes Hanco*ck, Brooke, Ohio, Marshall and Wetzelcounties.

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

(B) Participating institutions include West Virginia NorthernCommunity and Technical College; John Marshall High School; CameronHigh School; John D. Rockefeller IV Career Center; and other publicvocational schools career and technical centers offeringpost-secondary programs.

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

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

(B) Participating institutions include Pierpont Community andTechnical College a division of Fairmont State University;Glenville State College; Randolph County Vocational- TechnicalCenter; Monongalia County Technical Education Center; UnitedTechnical Center; Marion County Technical Center; Fred W. EberlyEberle Technical Center; Calhoun Gilmer Career Center; TaylorCounty Technical Center; and other public vocational schools careerand technical centers offering post-secondary programs.

(3) Mid-Ohio Valley Community and Technical College Districtincludes Tyler, Pleasants, Ritchie, Wood, Wirt, Jackson and Roanecounties.

(A) The facilitating institution is West Virginia Universityat Parkersburg.

(B) Participating institutions include West VirginiaUniversity at Parkersburg; West Virginia Northern Community andTechnical College; Roane-Jackson Technical Center; Gaston CapertonCenter; Wood County Technical Center; Mid Ohio Valley TechnicalInstitute and other public vocational schools career and technicalcenters offering post-secondary programs.

(4) Potomac Highlands Community and Technical College Districtincludes Tucker, Pendleton, Grant, Hardy, Mineral and Hampshirecounties.

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

(B) Participating institutions include Eastern West VirginiaCommunity and Technical College; South Branch Career and TechnicalCenter; Mineral County Technical Center; and other publicvocational schools career and technical centers offeringpost-secondary programs.

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

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

(B) Participating institutions include Blue Ridge Communityand Technical College; James Rumsey Technical Institute; and otherpublic vocational schools career and technical centers offeringpost-secondary programs.

(6) Advantage Valley Community and Technical College Districtincludes Fayette, Kanawha, Clay, Putnam, Cabell, Mason and Waynecounties.

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

(B) Every five years the council shall:

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

(ii) Evaluate the progress of each community and technicalcollege in the district toward achieving the goals and benchmarksof its institutional compact;

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

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

(C) Participating institutions include Marshall MountwestCommunity and Technical College; the Bridgemont Community andTechnical College; at West Virginia University Institute ofTechnology; West Virginia State Kanawha Valley Community andTechnical College; Carver Career and Technical Education Center;Garnet Career Center; Ben Franklin Career and Technical Center;Putnam County Vocational-Technical-Occupational Career andTechnical Center; Cabell County Career-Technical Career-TechnologyCenter; Mason County Career Center; and other public vocationalschools career and technical centers offering post-secondaryprograms.

(7) Southern Mountains Community and Technical CollegeDistrict includes Lincoln, Boone, Logan, Mingo, Wyoming andMcDowell counties.

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

(B) Participating institutions include Southern West VirginiaCommunity and Technical College; New River Community and TechnicalCollege; Boone County Career and Technical Center; Wyoming CountyVocational- Career and Technical Center; Ralph R. Willis Career andTechnical Center; McDowell County Career and Technology Center;Mingo County Vocation-Technical Extended Learning Center; CharlesYeager Technical Center and other public vocational schools careerand technical centers offering post-secondary programs.

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

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

(B) Participating institutions include New River Community andTechnical College; Southern West Virginia Community and TechnicalCollege; the Bridgemont Community and Technical College; at WestVirginia University Institute of Technology; Bluefield StateCollege; Academy of Careers and Technology; Fayette PlateauVocation-Technology Center Institute of Technology; Summers CountyHigh School; Monroe County Technical Center; Mercer CountyTechnical Education Center; Nicholas County Career and TechnicalCenter; and other public vocational schools career and technicalcenters offering post-secondary programs.

(9) Cochairs preside over each consortium as follows:

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

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

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

(1) Communicates to the Council and State Board;

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

(3) Facilitates development of a statement of commitmentsigned by all participating institutions in the region as to howsetting forth how community and technical college education will bedelivered; and

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

(e) Participating institutions are not subordinate to thefacilitating institution but will shall sign the statement ofcommitment to participate.

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

(1) Maintain guidelines for community and technical collegeconsortia development; Annually evaluating the progress made inmeeting the compact goals for each consortium through thedevelopment and collection of performance indicator data; and

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

(3) (2) Maintain a Providing each consortium with a modelformat for developing and revising a consortium compact outliningplans strategies and procedures for achieving stated goals. to Thecompact shall be submitted to the Council annually for approval (g)On or before November 15 each year each consortium shall submit tothe council for approval a compact which outlines plans forobtaining the stated goals. and State Board for their respectiveapprovals before July 1, 2012, and annually thereafter. TheCouncil is responsible for approving the compact components relatedto community and technical college education. The State Board isresponsible for approving the compact components related to careerand technical education. Each compact shall include theimplementation of seamless curricula projects programs of study,the Collaborative Degree Completion Program and the West VirginiaEDGE Earn a Degree, Graduate Early Program.

(h) The council annually shall evaluate the progress made inmeeting the compact goals for each community and technical collegeconsortia through the development and collection of performanceindicator data.

ARTICLE 14. MISCELLANEOUS.

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

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

(1) It is in the best interest of the citizens to have aneffective and comprehensive system for the delivery of publichigher education services. In order to achieve desired goals ofeconomic growth and societal well being, it is critical that morecitizens have some level of education beyond high school.

(2) In Senate Bill 595 (Vision 2020), enacted in 2008 regularsession, state policymakers established detailed goals andobjectives that state institutions are expected to work towardachieving by the year 2020. Vision 2020 also provides mechanismsfor measuring success and for holding the state systems of highereducation accountable. It establishes clear-cut connectionsbetween the budget cycle, the goals and objectives and bothpositive and negative consequences.

(3) A variety of policy tools are available to influence anddirect public higher education behavior, including organizinginstitutions into functional systems, creating governancestructures and mechanisms designed to ensure that these systems andindividual institutions focus on the public policy agenda andestablishing outcomes-based goals, accountability measures andregulatory devices.

(4) While these policy tools are useful, they are notsufficient to influence institutions, students and employers tobehave in ways consistent with achieving the goals and objectivesof Vision 2020 the public policy agenda. Resources appropriated topublic higher education are used most effectively and efficientlywhen the attention of state colleges and universities is focused onmeeting established priorities. This focus is developed andsustained only when the state financing policy contains a directconnection between the Legislature’s power to appropriate money anddesired institutional outcomes. Unlike rules which can be bent;law can be creatively interpreted; accountability requirementswhich can lose their effectiveness as they are filtered throughlayers of bureaucracy; and responsibility for implementation whichis divided among agencies and, ultimately, is totally dependentupon institutional discretion, a financing policy that ties theflow of funds directly to progress on achieving established stategoals and objectives commands immediate attention.

(b) It is the constitutional responsibility of the Legislatureto determine how to make the best use of available resources tomeet state needs and established goals; therefore, the JointCommittee on Government and Finance shall create a select committeefor the two-fold purpose of making a specific and detailed analysisof outcomes-based funding models used in higher education andproviding recommendations to the Legislature on incorporating oneor more of these models as an effective piece of the state’sfinancing policy.

(1) The President of the Senate or designee;

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

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

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

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

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

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

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

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

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

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

(3) A review of outcomes-based funding models implemented inother states, including an evaluation of the degree to which thesepolicies have succeeded in influencing institutional and systembehavior;

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

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

(6) An analysis of the impact of different models oninstitutions with widely-differing missions, includingrecommendations on selecting and implementing the appropriate modelfor each type of institution specifically noting the impact ofselected models on community and technical colleges, baccalaureatecolleges and regional universities, and research universities.

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

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

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

The nays were: None.

Absent: None.

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

Senator Unger moved that the bill take effect from passage.

The nays were: None.

Absent: None.

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

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

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

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

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

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

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

ARTICLE 1. PURPOSES AND DEFINITIONS.

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

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

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

(B) Sexual abuse or sexual exploitation;

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

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

In addition to its broader meaning, physical injury mayinclude an injury to the child as a result of excessive corporalpunishment.

(2) "Abusing parent" means a parent, guardian or othercustodian, regardless of his or her age, whose conduct, as allegedin the petition charging child abuse or neglect, has been adjudgedby the court to constitute child abuse or neglect.

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

(4) "Child abuse and neglect" or "child abuse or neglect"means physical injury, mental or emotional injury, sexual abuse,sexual exploitation, sale or attempted sale or negligent treatmentor maltreatment of a child by a parent, guardian or custodian whois responsible for the child's welfare, under circ*mstances whichharm or threaten the health and welfare of the child.

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

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

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

(C) Preventing the unnecessary removal of children from theirfamilies by identifying family problems and assisting families inresolving problems which could lead to a removal of children and abreakup of the family;

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

(E) Placing children in suitable adoptive homes whenreunifying the children with their families, or some portionthereof, is not possible or appropriate; and

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

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

(A) Child-appropriate/child-friendly facility: A childadvocacy center provides a comfortable, private, child-friendlysetting that is both physically and psychologically safe forclients.

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

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

(D) Cultural competency and diversity: The CAC promotespolicies, practices and procedures that are culturally competent.Cultural competency is defined as the capacity to function in morethan one culture, requiring the ability to appreciate, understandand interact with members of diverse populations within the localcommunity.

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

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

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

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

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

(J) Case tracking: CACs must develop and implement a systemfor monitoring case progress and tracking case outcomes for teamcomponents: Provided, That a child advocacy center may establisha safe exchange location for children and families who have aparenting agreement or an order providing for visitation or custodyof the children that require a safe exchange location.

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

(A) Standards: CASA programs shall be members in good standingwith the West Virginia Court Appointed Special AdvocateAssociation, Inc., and the National Court Appointed SpecialAdvocates Association and adhere to all standards set forth bythese entities.

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

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

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

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

(F) Training: Court appointed special advocates shall serve asvolunteers without compensation and shall receive trainingconsistent with state and nationally developed standards.

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

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

(B) A combination of physical and other signs indicating apattern of abuse which may be medically diagnosed as battered childsyndrome;

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

(E) Inadequate treatment of serious illness or disease;

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

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

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

(8) (9) "Legal guardianship" means the permanent relationshipbetween a child and caretaker, established by order of the circuitcourt having jurisdiction over the child, pursuant to theprovisions of this chapter and chapter forty-eight of this code.

(9) (10) "Multidisciplinary team" means a group ofprofessionals and paraprofessionals representing a variety ofdisciplines who interact and coordinate their efforts to identify,diagnose and treat specific cases of child abuse and neglect.Multidisciplinary teams may include, but are not limited to,medical, educational, child care and law-enforcement personnel,social workers, psychologists and psychiatrists. Their goal is topool their respective skills in order to formulate accuratediagnoses and to provide comprehensive coordinated treatment withcontinuity and followup for both parents and children. "Communityteam" means a multidisciplinary group which addresses the generalproblem of child abuse and neglect in a given community and mayconsist of several multidisciplinary teams with differentfunctions.

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

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

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

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

(11) (l2) “Parent” means an individual defined has a parent bylaw or on the basis of a biological relationship, marriage to aperson with a biological relationship, legal adoption or otherrecognized grounds.

(12) (13) “Parental rights” means any and all rights andduties regarding a parent to a minor child, including, but notlimited to, custodial rights and visitational rights and rights toparticipate in the decisions affecting a minor child.

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

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

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

(i) Sexual intercourse;

(ii) Sexual intrusion; or

(iii) Sexual contact;

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

(i) Sexual intercourse;

(ii) Sexual intrusion; or

(iii) Sexual contact;

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

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

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

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

(B) A parent, guardian or custodian persuades, induces,entices or coerces a child to display his or her sex organs for thesexual gratification of the parent, guardian, custodian or a thirdperson, or to display his or her sex organs under circ*mstances inwhich the parent, guardian or custodian knows such display islikely to be observed by others who would be affronted or alarmed.

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

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

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

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

(21) (22) "Siblings" means children who have at least onebiological parent in common or who have been legally adopted by thesame parents or parent.

(22) (23) "Time-limited reunification services" meansindividual, group and family counseling, inpatient, residential oroutpatient substance abuse treatment services, mental healthservices, assistance to address domestic violence, servicesdesigned to provide temporary child care and therapeutic servicesfor families, including crisis nurseries and transportation to orfrom any such services, provided during fifteen of the most recenttwenty-two months a child has been in foster care, as determined bythe earlier date of the first judicial finding that the child issubjected to abuse or neglect, or the date which is sixty daysafter the child is removed from home.

ARTICLE 2. STATE RESPONSIBILITIES FOR THE PROTECTION AND CARE OFCHILDREN.

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

(a) From funds appropriated to the Department of Health andHuman Resources, the secretary shall establish a system ofassistance for facilitating the adoption or legal guardianship ofchildren. An adoption subsidy shall be available for children whoare legally free for adoption and who are dependents of thedepartment or a child welfare agency licensed to place children foradoption. A legal guardianship subsidy shall not require thesurrender or termination of parental rights. For either subsidy,the children must be in special circ*mstances either because theyone or more of the following conditions inhibit their adoption orlegal guardianship placement:

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

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

(1) They have a physical or mental disability;

(2) They are emotionally disturbed;

(3) They are older children;

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

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

(6) They have any combination of these conditions.

(b) The department shall provide assistance in the form ofsubsidies or other services to parents who are found and approvedfor adoption or legal guardianship of a child certified as eligiblefor subsidy by the department, but before the final decree ofadoption or order of legal guardianship is entered, there must bea written agreement between the family entering into the subsidizedadoption or legal guardianship and the department. Adoption orlegal guardianship subsidies in individual cases may commence withthe adoption or legal guardianship placement, and will vary withthe needs of the child as well as the availability of otherresources to meet the child's needs. The subsidy may be forspecial services only, or for money payments, and either for alimited period, or for a long term, or for any combination of theforegoing. The specific financial terms of the subsidy shall beincluded in the agreement between the department and the adoptiveparents or legal guardians. The agreement may recognize and providefor direct payment by the department of attorney’s fees to anattorney representing the adoptive parent. The amount of the time-limited or long-term subsidy may in no case exceed that which wouldbe allowable from time to time for such child under foster familycare or, in the case of a special service, the reasonable fee forthe service rendered. In addition, the department shall provideeither Medicaid or other health insurance coverage for any specialneeds child for whom there is an adoption or legal guardianshipassistance agreement between the department and the adoptive parentor legal guardian and who the department determines cannot beplaced with an adoptive parent or legal guardian without medicalassistance because the child has special needs for medical, mentalhealth or rehabilitative care.

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

In all other cases, (c) After reasonable efforts have beenmade without the use of subsidy and no appropriate adoptive familyor legal guardian has been found for the child, the departmentshall certify the child as eligible for a subsidy in the event ofadoption or a legal guardianship: Provided, that reasonableefforts to place a child without a subsidy shall not be required ifit is in the best interest of the child because of such factors asthe existence of significant emotional ties developed between thechild and the prospective parent or guardian while in care as afoster child.

(d) If the child is the dependent of a voluntary licensedchild-placing agency, that agency shall present to the departmentevidence of significant emotional ties between the child and hisfoster parents or evidence of the inability to place the child foradoption or legal guardianship without the use of subsidy orevidence that such efforts would not be in the best interests ofthe child. In no event shall the value of the services andassistance provided by the department under an agreement pursuantto this section exceed the value of assistance available to fosterfamilies in similar circ*mstances. All records regarding subsidizedadoptions or legal guardianships shall be held in confidence;however, records regarding the payment of public funds forsubsidized adoptions or legal guardianships shall be available forpublic inspection provided they do not directly or indirectlyidentify any child or persons receiving funds for such child.

ARTICLE 5. JUVENILE PROCEEDINGS.

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

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

(b) Following the adjudication, the court shall conduct thedispositional proceeding, giving all parties an opportunity to beheard. In disposition the court shall not be limited to the reliefsought in the petition and shall, in electing from the followingalternatives, consider the best interests of the juvenile and thewelfare of the public:

(1) Dismiss the petition;

(2) Refer the juvenile and the juvenile's parent or custodianto a community agency for needed assistance and dismiss thepetition;

(3) Upon a finding that the juvenile is in need of extra-parental supervision: (A) Place the juvenile under the supervisionof a probation officer of the court or of the court of the countywhere the juvenile has his or her usual place of abode or otherperson while leaving the juvenile in custody of his or her parentor custodian; and (B) prescribe a program of treatment or therapyor limit the juvenile's activities under terms which are reasonableand within the child's ability to perform, including participationin the litter control program established pursuant to sectionthree, article fifteen-a, chapter twenty-two of this code or otherappropriate programs of community service;

(4) Upon a finding that a parent or custodian is not willingor able to take custody of the juvenile, that a juvenile is notwilling to reside in the custody of his or her parent or custodianor that a parent or custodian cannot provide the necessarysupervision and care of the juvenile, the court may place thejuvenile in temporary foster care or temporarily commit thejuvenile to the department or a child welfare agency. The courtorder shall state that continuation in the home is contrary to thebest interest of the juvenile and why; and whether or not thedepartment made a reasonable effort to prevent the placement orthat the emergency situation made such efforts unreasonable orimpossible. Whenever the court transfers custody of a youth to thedepartment, an appropriate order of financial support by theparents or guardians shall be entered in accordance with sectionfive, article seven of this chapter and guidelines promulgated bythe Supreme Court of Appeals;

(5) Upon a finding that the best interests of the juvenile orthe welfare of the public require it, and upon an adjudication ofdelinquency pursuant to subdivision (1), section four, article oneof this chapter, the court may commit the juvenile to the custodyof the Director of the Division of Juvenile Services for placementin a juvenile services facility for the treatment, instruction andrehabilitation of juveniles: Provided, That the court maintainsdiscretion to consider alternative sentencing arrangements.Notwithstanding any provision of this code to the contrary, in theevent that the court determines that it is in the juvenile's bestinterests or required by the public welfare to place the juvenilein the custody of the Division of Juvenile Services, the courtshall provide the Division of Juvenile Services with access to allrelevant court orders and records involving the underlying offenseor offenses for which the juvenile was adjudicated delinquent,including sentencing and presentencing reports and evaluations, andprovide the division with access to school records, psychologicalreports and evaluations, medical reports and evaluations or anyother such records as may be in the court's possession as wouldenable the Division of Juvenile Services to better assess anddetermine the appropriate counseling, education and placement needsfor the juvenile offender. Commitments shall not exceed the maximumterm for which an adult could have been sentenced for the sameoffense and any such maximum allowable sentence to be served in ajuvenile correctional facility may take into account any timeserved by the juvenile in a detention center pending adjudication,disposition or transfer. The order shall state that continuation inthe home is contrary to the best interests of the juvenile and why;and whether or not the state department made a reasonable effort toprevent the placement or that the emergency situation made suchefforts unreasonable or impossible; or

(6) After a hearing conducted under the procedures set out insubsections (c) and (d), section four, article five, chaptertwenty-seven of this code, commit the juvenile to a mental healthfacility in accordance with the juvenile's treatment plan; thedirector of the mental health facility may release a juvenile andreturn him or her to the court for further disposition. The ordershall state that continuation in the home is contrary to the bestinterests of the juvenile and why; and whether or not the statedepartment made a reasonable effort to prevent the placement orthat the emergency situation made such efforts unreasonable orimpossible.

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

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

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

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

ARTICLE 5D. MULTIDISCIPLINARY TEAMS.

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

(a) The prosecuting attorney shall establish amultidisciplinary investigative team in each county. Themultidisciplinary team shall be headed and directed by theprosecuting attorney or his or her designee and shall include aspermanent members the prosecuting attorney or his or her designee,a local child protective services caseworker from the Department ofHealth and Human Resources; a local law-enforcement officeremployed by a law-enforcement agency in the county; a childadvocacy center representative, where available; a health careprovider with pediatric and child abuse expertise, where available;a mental health professional with pediatric and child abuseexpertise, where available; an educator and where appropriate tothe particular case under consideration and available arepresentative from the a licensed domestic violence programserving the county. The Department of Health and Human Resourcesand any local law-enforcement agency or agencies selected by theprosecuting attorney shall appoint their representatives to theteam by submitting a written designation of the team to theprosecuting attorney of each county within thirty days of theprosecutor's request that the appointment be made. Within fifteendays of the appointment, the prosecuting attorney shall notify thechief judge of each circuit within which the county is situated ofthe names of the representatives so appointed. Any other person orany other appointee of an agency who may contribute to the team'sefforts to assist a minor child as may be determined by thepermanent members of the team may also be appointed as a member ofthe team by the prosecutor with notification to the chief judge.

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

(c) The investigative team shall be responsible forcoordinating or cooperating in the initial and ongoinginvestigation of all civil and criminal allegations pertinent tocases involving child sexual assault, child sexual abuse, childabuse and neglect and shall make a recommendation to the countyprosecuting attorney as to the initiation or commencement of acivil petition and/or criminal prosecution.

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

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

(a) (1) A multidisciplinary treatment planning process forcases initiated pursuant to articles five and six of this chaptershall be established within each county of the state, eitherseparately or in conjunction with a contiguous county, by thesecretary of the department with advice and assistance from theprosecutor's advisory council as set forth in section four, articlefour, chapter seven of this code. The Division of Juvenile Servicesshall establish a similar treatment planning process fordelinquency cases in which the juvenile has been committed to thecustody of the director of the division its custody, includingthose cases in which the juvenile has been committed forexamination and diagnosis.

(2) The provisions of this section do not require amultidisciplinary team meeting to be held prior to temporarilyplacing a child or juvenile out-of-home under exigent circ*mstancesor upon a court order placing a juvenile in a facility operated bythe Division of Juvenile Services.

(2) (b) The case manager in the Department of Health and HumanResources for the child, family or juvenile or the case manager inthe Division of Juvenile Services for a juvenile shall convene atreatment team in each case when it is required pursuant to thisarticle. Treatment teams shall assess, plan and implement acomprehensive, individualized service plan for children who arevictims of abuse or neglect and their families when a judicialproceeding has been initiated involving the child or children forjuveniles and their families involved in status offense ordelinquency proceedings when, in a status offense proceeding, thecourt refers the juvenile for services pursuant to sections elevenand eleven-a, article five of this chapter and when, in adelinquency proceeding, the court is considering placing thejuvenile in the department's custody or placing the juvenile out ofhome at the department's expense pursuant to the provisions ofsection thirteen of said article. In any such status offense ordelinquency case, the juvenile probation officer shall notify thelocal office of the Department of Health and Human Resources andthe Division of Juvenile Services at least five working days beforethe court proceeding in order to allow the multidisciplinarytreatment team to convene and develop a comprehensiveindividualized service plan for the child: Provided, That suchnotice is not required in cases where the child is already in statecustody or there exist exigent circ*mstances which justify takingthe child immediately into custody without a judicial proceeding.In developing an individualized service plan for a child, the teamshall utilize a uniform comprehensive assessment of the child. Thedepartment shall adopt a standard uniform comprehensive assessmentinstrument or protocol to be used by treatment teams.

(3) Prior to disposition, in each case in which a treatmentplanning team has been convened, the team shall advise the court asto the types of services the team has determined are needed and thetype of placement, if any, which will best serve the needs of thechild. If the team determines that an out-of-home placement willbest serve the needs of the child, the team shall first considerplacement at with appropriate relatives then with foster carehomes, facilities or programs located within the state. The teammay only recommend placement in an out-of-state facility if itconcludes, after considering the best interests and overall needsof the child, that there are no available and suitable in-statefacilities which can satisfactorily meet the specific needs of thechild.

(b) Each treatment team shall be convened by the child's orfamily's case manager in the Department of Health and HumanResources or the Division of Juvenile Services if the juvenile hasbeen ordered into its custody for examination and diagnosispursuant to section thirteen, article five of this chapter. Thetreatment team shall consist of the child's custodial parent orparents, guardian or guardians, other immediate family members, theattorney or attorneys representing the child, the parent or parentsof the child, the child's attorney, the guardian ad litem, if any,the prosecuting attorney or his or her designee, a member of achild advocacy center when the child has been processed through thechild advocacy center program(s) and, where appropriate to theparticular case under consideration and available, a court-appointed special advocate, a member of a child advocacy center, anappropriate school official and any other person or an agencyrepresentative who may assist in providing recommendations for theparticular needs of the child and family. The child may participatein multidisciplinary treatment team meetings if such is deemedappropriate by the multidisciplinary treatment team. For purposesof delinquency proceedings, the juvenile probation officer shall bea member of the treatment team. Any person authorized by theprovisions of this chapter to convene a multidisciplinary teammeeting may seek and receive an order of the circuit court settingsuch meeting and directing attendance. Members of themultidisciplinary team may participate in team meetings bytelephone or video conferencing: Provided, That a member of achild advocacy center should participate in any case whenappropriate to the particular case under consideration. That theprovisions of this subsection do not prevent the respectiveagencies from designating a person other than the case manager asa facilitator for treatment team meetings.

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

(d) State, county and local agencies shall provide themultidisciplinary treatment teams with any information requested inwriting by the team as allowable by law or upon receipt of acertified copy of the circuit court's order directing said agenciesto release information in its possession relating to the child. Theteam shall assure that all information received and developed inconnection with the provisions of this article remain confidential.For purposes of this section, the term “confidential” shall beconstrued in accordance with the provisions of section one, articleseven of this chapter. The multidisciplinary treatment team shallbe afforded access to information in the possession of theDepartment of Health and Human Services, Division of JuvenileServices, law-enforcement agencies and other state, county andlocal agencies; and the agencies shall cooperate in the sharing ofinformation, as may be provided in sections three (d) and six,article five-d and section one, article seven, all of chapterforty-nine, and any other relevant provision of law. Anymultidisciplinary team member who acquires confidential informationshall not disclose such information except as permitted by theprovisions of this code or court rules.

(e) Nothing in this section may be construed to require amultidisciplinary team meeting to be held prior to temporarilyplacing a child out-of-home under exigent circ*mstances or upon acourt order placing the juvenile in a juvenile facility operated bythe Division of Juvenile Services.

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

(a) In any case in which a multidisciplinary treatment teamdevelops an individualized service plan for a child or familypursuant to the provisions of section three of this article, thecourt shall review the proposed service plan to determine ifimplementation of the plan is in the child's best interests. If themultidisciplinary team cannot agree on a plan or if the courtdetermines not to adopt the team's recommendations, it shall, uponmotion or sua sponte, schedule and hold within ten days of suchdetermination, and prior to the entry of an order placing the childin the custody of the department or in an out-of-home setting, ahearing to consider evidence from the team as to its rationale forthe proposed service plan. If, after a hearing held pursuant to theprovisions of this section, the court does not adopt the teams'srecommended service plan, it shall make specific written findingsas to why the team's recommended service plan was not adopted.

(b) In any case in which the court decides to order the childplaced in an out-of-state facility or program it shall set forth inthe order directing the placement the reasons why the child was notplaced in an in-state facility or program.

(c) Any member of the multidisciplinary treatment team whodisagrees with recommendations of the team may inform the court ofhis or her own recommendations and objections to the team’srecommendations. The recommendations and objections of thedissenting team member may be made in a hearing on the record, madein writing and served upon each team member and filed with thecourt and indicated in the case plan, or both made in writing andindicated in the case plan. Upon receiving objections, the courtwill conduct a hearing pursuant to paragraph (a) of this section.

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

(a) Within thirty days of the initiation of a judicialproceeding pursuant to article six of this chapter, the Departmentof Health and Human Services shall convene a multidisciplinarytreatment team to assess, plan and implement a comprehensive,individualized service plan for children who are victims of abuseor neglect and their families. The multidisciplinary team shallobtain and utilize any assessments for the children or the adultrespondents that it deems necessary to assist in the development ofsuch a plan.

(b) In a case initiated pursuant to article six of thischapter, the treatment team shall consist of the child or family’scase manager in the Department of Health and Human Resources, theadult respondent or respondents, the child’s parent or parents,guardians, any copetitioners, custodial relatives of the child,foster or preadoptive parents, any attorney representing an adultrespondent or other member of the treatment team, the child’scounsel or the guardian ad litem, the prosecuting attorney or hisor her designee, a member of a child advocacy center when the childhas been processed through the child advocacy center program orprograms or it is otherwise appropriate that a member of the childadvocacy center participate, any court-appointed special advocateassigned to a case, any other person entitled to notice and theright to be heard, an appropriate school official and any otherperson or agency representative who may assist in providingrecommendations for the particular needs of the child and family,including domestic violence service providers. The child mayparticipate in multidisciplinary treatment team meetings if thechild’s participation is deemed appropriate by themultidisciplinary treatment team. Unless otherwise ordered by thecourt, a party whose parental rights have been terminated and hisor her attorney shall not be given notice of a multidisciplinarytreatment team meeting and does not have the right to participatein any treatment team meeting.

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

(d) The multidisciplinary treatment team shall submit writtenreports to the court as required by the rules governing this typeof proceeding or by the court, and shall meet as often as deemednecessary but at least every three months until the case isdismissed from the docket of the court. The multidisciplinarytreatment team shall be available for status conferences andhearings as required by the court.

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

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

(a) (1) When a juvenile is adjudicated as a status offenderpursuant to section eleven-d, article five of this chapter, theDepartment of Health and Human Resources shall promptly convene amultidisciplinary treatment team and conduct an assessment,utilizing a standard uniform comprehensive assessment instrument orprotocol, to determine the juvenile’s mental and physicalcondition, maturity and education level, home and familyenvironment, rehabilitative needs and recommended service plan. Upon completion of the assessment, the treatment team shall prepareand implement a comprehensive, individualized service plan for thejuvenile.

(2) When a juvenile is adjudicated as a delinquent or has beengranted an improvement period pursuant to section nine, articlefive of this chapter, the court, either upon its own motion ormotion of a party, may require the Department of Health and HumanResources to convene a multidisciplinary treatment team and conductan assessment, utilizing a standard uniform comprehensiveassessment instrument or protocol, to determine the juvenile’smental and physical condition, maturity and education level, homeand family environment, rehabilitative needs and recommendedservice plan. A referral to the Department of Health and HumanResources to convene a multidisciplinary treatment team and toconduct such an assessment shall be made when the court isconsidering placing the juvenile in the department’s custody orplacing the juvenile out-of-home at the department’s expensepursuant to section thirteen, article five of this chapter. In anydelinquency proceeding in which the court requires the Departmentof Health and Human Resources to convene a multidisciplinarytreatment team, the probation officer shall notify the departmentat least fifteen working days before the court proceeding in orderto allow the department sufficient time to convene and develop anindividualized service plan for the juvenile.

(3) When a juvenile has been adjudicated and committed to thecustody of the Director of the Division of Juvenile Services,including those cases in which the juvenile has been committed forexamination and diagnosis, the Division of Juvenile Services shallpromptly convene a multidisciplinary treatment team and conduct anassessment, utilizing a standard uniform comprehensive assessmentinstrument or protocol, to determine the juvenile’s mental andphysical condition, maturity and education level, home and familyenvironment, rehabilitative needs and recommended service plan. Upon completion of the assessment, the treatment team shall prepareand implement a comprehensive, individualized service plan for thejuvenile.

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

(B) In juvenile proceedings conducted pursuant to article fiveof this chapter, the treatment team shall consist of the juvenile,the juvenile’s case manager in the Department of Health and HumanResources or the Division of Juvenile Services, the juvenile’sparent or parents, guardian or guardians or custodial relatives,the juvenile’s attorney, any attorney representing a member of thetreatment team, the prosecuting attorney or his or her designee, anappropriate school official and any other person or agencyrepresentative who may assist in providing recommendations for theparticular needs of the juvenile and family, including domesticviolence service providers. In delinquency proceedings, theprobation officer shall be a member of a treatment team. Whenappropriate, the juvenile case manager in the Department of Healthand Human Resources and the Division of Juvenile Services shallcooperate in conducting multidisciplinary treatment team meetingswhen it is in the juvenile’s best interest.

(C) Prior to disposition, in each case in which a treatmentplanning team has been convened, the team shall advise the court asto the types of services the team has determined are needed andtype of placement, if any, which will best serve the needs of thechild. If the team determines that an out-of-home placement willbest serve the needs of the child, the team shall first considerplacement at facilities or programs located within the state. Theteam may only recommend placement in an out-of-state facility if itconcludes, after considering the best interests and overall needsof the child, that there are no available and suitable in-statefacilities which can satisfactorily meet the specific needs of thechild.

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

(E) In any case in which a juvenile has been placed out of hisor her home except for a temporary placement in a shelter ordetention center, the multidisciplinary treatment team shallcooperate with the state agency in whose custody the juvenile isplaced to develop an after-care plan. The rules of juvenileprocedure and section twenty, article five, chapter forty-nine ofthe code shall govern the development of an after-care plan for ajuvenile, the submission of the plan to the court and any objectionto the after-care plan.

(F) If a juvenile respondent admits the underlying allegationsof the case initiated pursuant to article five, chapter forty-nineof this code in the multidisciplinary treatment planning process,his or her statements shall not be used in any juvenile or criminalproceedings against the juvenile, except for perjury or falseswearing.

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

(a) In any proceeding under the provisions of this article,the child, his or her or parents and his or her legally establishedcustodian or other persons standing in loco parentis to him or hershall have the right to be represented by counsel at every stage ofthe proceedings and shall be informed by the court of their rightto be so represented and that if they cannot pay for the servicesof counsel, that counsel will be appointed. Counsel of the childshall be appointed in the initial order. If the order givesphysical custody of the child to the state, the initial order shallappoint counsel for the parents or, if the parents are separated ordivorced, the parents or parent or other person or persons standingin loco parentis who had physical custody of the child for themajority of the time in the period immediately preceding thepetition: Provided, That such representation shall only continueafter the first appearance if the parent or other persons standingin loco parentis cannot pay for the services of counsel. Counselfor other parties shall only be appointed upon request forappointment of counsel. If the requesting parties have not retainedcounsel and cannot pay for the services of counsel, the courtshall, by order entered of record, appoint an attorney or attorneysto represent the other party or parties and so inform the parties.Under no circ*mstances may the same attorney represent both thechild and the other party or parties, nor shall the same attorneyrepresent both parents or custodians. However, one attorney mayrepresent both parents or custodians where both parents orguardians consent to this representation after the attorney fullydiscloses to the client the possible conflict and where theattorney assures the court that she or he is able to represent eachclient without impairing her or his professional judgment; however,if more than one child from a family is involved in the proceeding,one attorney may represent all the children. A parent who has beenjudicially determined to be battered shall be entitled to his orher own attorney. The court may allow to each attorney so appointeda fee in the same amount which appointed counsel can receive infelony cases. Effective July 1, 2012, any attorney appointedpursuant to this section shall by the first day of July, onethousand nine hundred ninety-three, and three hours per year eachyear thereafter, receive a minimum of three eight hours ofcontinuing legal education training on representation of children,child abuse and neglect per reporting period on child abuse andneglect procedure and practice. In addition to this requirement,after July 1, 2013, any attorney appointed to represent a childmust first complete training on representation of children that isapproved by the administrative office of the Supreme Court ofAppeals. The Supreme Court of Appeals shall develop procedures forapproval and certification of training required under this sectionby July 1, 2012: Provided, however, That where no attorney who hascompleted this training is available for such appointment, thecourt shall appoint a competent attorney with demonstratedknowledge of child welfare law to represent the parent or child.Any attorney appointed pursuant to this section shall perform allduties required as an attorney licensed to practice law in theState of West Virginia.

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

(c) In any proceeding pursuant to the provisions of thisarticle, the party or parties having custodial or other parentalrights or responsibilities to the child shall be afforded ameaningful opportunity to be heard, including the opportunity totestify and to present and cross-examine witnesses. The petitionshall not be taken as confessed. A transcript or recording shall bemade of all proceedings unless waived by all parties to theproceeding. The rules of evidence shall apply. Where relevant, thecourt shall consider the efforts of the state department to remedythe alleged circ*mstances. At the conclusion of the hearing, thecourt shall make a determination based upon the evidence and shallmake findings of fact and conclusions of law as to whether suchchild is abused or neglected and, if applicable, whether theparent, guardian, or custodian is a battered parent, all of whichshall be incorporated into the order of the court. The findingsmust be based upon conditions existing at the time of the filing ofthe petition and proven by clear and convincing proof.

(d) Any petition filed and any proceeding held under theprovisions of this article shall, to the extent practicable, begiven priority over any other civil action before the court, exceptproceedings under article two-a, chapter forty-eight of this codeand actions in which trial is in progress. Any petition filed underthe provisions of this article shall be docketed immediately uponfiling. Any hearing to be held at the end of an improvement periodand any other hearing to be held during any proceedings under theprovisions of this article shall be held as nearly as practicableon successive days and, with respect to said hearing to be held atthe end of an improvement period, shall be held as close in time aspossible after the end of said improvement period and shall be heldwithin sixty days of the termination of such improvement period.(e) Following the court's determination, it shall be inquiredof the parents or custodians whether or not appeal is desired andthe response transcribed. A negative response shall not beconstrued as a waiver. The evidence shall be transcribed and madeavailable to the parties or their counsel as soon as practicable,if the same is required for purposes of further proceedings. If anindigent person intends to pursue further proceedings, the courtreporter shall furnish a transcript of the hearing without cost tothe indigent person if an affidavit is filed stating that he or shecannot pay therefor.

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

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

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

(2) There are no reasonably available alternatives to removalof the child, including, but not limited to, the provision ofmedical, psychiatric, psychological or homemaking services in thechild's present custody: Provided, That where the alleged abusingperson, if known, is a member of a household, the court shall notallow placement pursuant to this section of the child or childrenin said home unless the alleged abusing person is or has beenprecluded from visiting or residing in said home by judicial order.In a case where there is more than one child in the home, or in thetemporary care, custody or control of the alleged offending parent,the petition shall so state, and notwithstanding the fact that theallegations of abuse or neglect may pertain to less than all ofsuch children, each child in the home for whom relief is soughtshall be made a party to the proceeding. Even though the acts ofabuse or neglect alleged in the petition were not directed againsta specific child who is named in the petition, the court shallorder the removal of such child, pending final disposition, if itfinds that there exists imminent danger to the physical well beingof the child and a lack of reasonable available alternatives toremoval. The initial order directing such custody shall contain anorder appointing counsel and scheduling the preliminary hearing,and upon its service shall require the immediate transfer ofcustody of such child or children to the department or aresponsible relative which may include any parent, guardian, orother custodian. The court order shall state:

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

(B) Whether or not the department made reasonable efforts topreserve the family and prevent the placement or that the emergencysituation made such efforts unreasonable or impossible. The ordermay also direct any party or the department to initiate or becomeinvolved in services to facilitate reunification of the family.(b) Whether or not the court orders immediate transfer ofcustody as provided in subsection (a) of this section, if the factsalleged in the petition demonstrate to the court that there existsimminent danger to the child, the court may schedule a preliminaryhearing giving the respondents at least five days' actual notice.If the court finds at the preliminary hearing that there are noalternatives less drastic than removal of the child and that ahearing on the petition cannot be scheduled in the interim period,the court may order that the child be delivered into the temporarycustody of the department or a responsible person or agency foundby the court to be a fit and proper person for the temporary careof the child for a period not exceeding sixty days: Provided, Thatthe court order shall state:

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

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

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

(4) What efforts should be made by the department, if any, tofacilitate the child's return home: Provided, however, That if thecourt grants an improvement period as provided in section twelve ofthis article, the sixty-day limit upon temporary custody is waived.(c) If a child or children shall, in the presence of a childprotective service worker, be in an emergency situation whichconstitutes an imminent danger to the physical well being of thechild or children, as that phrase is defined in section three,article one of this chapter, and if such worker has probable causeto believe that the child or children will suffer additional childabuse or neglect or will be removed from the county before apetition can be filed and temporary custody can be ordered, theworker may, prior to the filing of a petition, take the child orchildren into his or her custody without a court order: Provided,That after taking custody of such child or children prior to thefiling of a petition, the worker shall forthwith appear before acircuit judge or a juvenile referee of the county wherein custodywas taken, or if no such judge or referee be available, before acircuit judge or a juvenile referee of an adjoining county, andshall immediately apply for an order ratifying the emergencycustody of the child pending the filing of a petition. The circuitcourt of every county in the state shall appoint at least one ofthe magistrates of the county to act as a juvenile referee, whoshall serve at the will and pleasure of the appointing court, andwho shall perform the functions prescribed for such position by theprovisions of this subsection. The parents, guardians or custodiansof the child or children may be present at the time and place ofapplication for an order ratifying custody, and if at the time thechild or children are taken into custody by the worker, the workerknows which judge or referee is to receive the application, theworker shall so inform the parents, guardians or custodians. Theapplication for emergency custody may be on forms prescribed by theSupreme Court of Appeals or prepared by the prosecuting attorney orthe applicant, and shall set forth facts from which it may bedetermined that the probable cause described above in thissubsection exists. Upon such sworn testimony or other evidence asthe judge or referee deems sufficient, the judge or referee mayorder the emergency taking by the worker to be ratified. Ifappropriate under the circ*mstances, the order may includeauthorization for an examination as provided for in subsection (b),section four of this article. If a referee issues such an order,the referee shall by telephonic communication have such orderorally confirmed by a circuit judge of the circuit or an adjoiningcircuit who shall on the next judicial day enter an order ofconfirmation. If the emergency taking is ratified by the judge orreferee, emergency custody of the child or children shall be vestedin the department until the expiration of the next two judicialdays, at which time any such child taken into emergency custodyshall be returned to the custody of his or her parent or guardianor custodian unless a petition has been filed and custody of thechild has been transferred under the provisions of section three ofthis article.

(d) For purposes of the court's consideration of temporarycustody pursuant to the provisions of subsection (a) or (b) of thissection, the department is not required to make reasonable effortsto preserve the family if the court determines:

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

(2) The parent has:

(A) Committed murder of the child's other parent, guardian orcustodian, another child of the parent or any other child residingin the same household or under the temporary or permanent custodyof the parent;

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

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

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

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

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

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

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

(a) Following a determination pursuant to section two of thisarticle wherein the court finds a child to be abused or neglected,the department shall file with the court a copy of the child's caseplan, including the permanency plan for the child. The term caseplan means a written document that includes, where applicable, therequirements of the family case plan as provided for in sectionthree, article six-d of this chapter and that also includes atleast the following: A description of the type of home orinstitution in which the child is to be placed, including adiscussion of the appropriateness of the placement and how theagency which is responsible for the child plans to assure that thechild receives proper care and that services are provided to theparents, child and foster parents in order to improve theconditions in the parent(s) home; facilitate return of the child tohis or her own home or the permanent placement of the child; andaddress the needs of the child while in foster care, including adiscussion of the appropriateness of the services that have beenprovided to the child. The term “permanency plan” refers to thatpart of the case plan which is designed to achieve a permanent homefor the child in the least restrictive setting available. The planmust document efforts to ensure that the child is returned homewithin approximate time lines for reunification as set out in theplan. Reasonable efforts to place a child for adoption or with alegal guardian may be made at the same time reasonable efforts aremade to prevent removal or to make it possible for a child tosafely return home. If reunification is not the permanency plan forthe child, the plan must state why reunification is not appropriateand detail the alternative placement for the child to includeapproximate time lines for when such placement is expected tobecome a permanent placement. This case plan shall serve as thefamily case plan for parents of abused or neglected children.Copies of the child's case plan shall be sent to the child'sattorney and parent, guardian or custodian or their counsel atleast five days prior to the dispositional hearing. The court shallforthwith proceed to disposition giving both the petitioner andrespondents an opportunity to be heard. The court shall giveprecedence to dispositions in the following sequence:

(1) Dismiss the petition;

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

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

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

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

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

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

(D) The specific circ*mstances of the situation which madesuch efforts unreasonable if services were not offered by thedepartment. The court order shall also determine under whatcirc*mstances the child's commitment to the department shallcontinue. Considerations pertinent to the determination includewhether the child should:

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

(ii) Be considered for adoption;

(iii) Be considered for legal guardianship;

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

(v) Be placed in another planned permanent living arrangement,but only in cases where the department has documented to thecircuit court a compelling reason for determining that it would notbe in the best interests of the child to follow one of the optionsset forth in subparagraphs (I), (ii), (iii) or (iv) of thisparagraph. The court may order services to meet the special needsof the child. Whenever the court transfers custody of a youth tothe department, an appropriate order of financial support by theparents or guardians shall be entered in accordance with sectionfive, article seven of this chapter; or

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

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

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

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

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

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

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

(iv) Whether or not the department made reasonable efforts topreserve and reunify the family, or some portion thereof, includinga description of what efforts were made or that such efforts wereunreasonable due to specific circ*mstances.

(7) For purposes of the court's consideration of thedisposition custody of a child pursuant to the provisions of thissubsection, the department is not required to make reasonableefforts to preserve the family if the court determines:

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

(B) The parent has:

(i) Committed murder of the child's other parent, guardian orcustodian, another child of the parent or any other child residingin the same household or under the temporary or permanent custodyof the parent;

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

(iii) Attempted or conspired to commit such a murder orvoluntary manslaughter or been an accessory before or after thefact to either such crime;
(iv) Committed a felonious assault that results in seriousbodily injury to the child, the child's other parent, guardian orcustodian, to another child of the parent or any other childresiding in the same household or under the temporary or permanentcustody of the parent; or

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

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

(D) A parent has been required by state or federal law toregister with a sex offender registry, and the court has determinedin consideration of the nature and circ*mstances surrounding theprior charges against that parent, that the child’s interests wouldnot be promoted by a preservation of the family.

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

(1) The abusing parent or parents have habitually abused orare addicted to alcohol, controlled substances or drugs, to theextent that proper parenting skills have been seriously impairedand such person or persons have not responded to or followedthrough the recommended and appropriate treatment which could haveimproved the capacity for adequate parental functioning;

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

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

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

(5) The abusing parent or parents have repeatedly or seriouslyinjured the child physically or emotionally, or have sexuallyabused or sexually exploited the child, and the degree of familystress and the potential for further abuse and neglect are so greatas to preclude the use of resources to mitigate or resolve familyproblems or assist the abusing parent or parents in fulfillingtheir responsibilities to the child;

(6) The abusing parent or parents have incurred emotionalillness, mental illness or mental deficiency of such duration ornature as to render such parent or parents incapable of exercisingproper parenting skills or sufficiently improving the adequacy ofsuch skills; or

(7) The battered parent's parenting skills have been seriouslyimpaired and said person has willfully refused or is presentlyunwilling or unable to cooperate in the development of a reasonabletreatment plan or has not adequately responded to or followedthrough with the recommended and appropriate treatment plan.

(c) The court may, as an alternative disposition, allow theparents or custodians an improvement period not to exceed sixmonths. During this period the court shall require the parent torectify the conditions upon which the determination was based. Thecourt may order the child to be placed with the parents, or anyperson found to be a fit and proper person, for the temporary careof the child during the period. At the end of the period, the courtshall hold a hearing to determine whether the conditions have beenadequately improved and at the conclusion of the hearing shall makea further dispositional order in accordance with this section.

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

(a) Upon motion of a child, a child's parent or custodian orthe state department alleging a change of circ*mstances requiringa different disposition, the court shall conduct a hearing pursuantto section two of this article and may modify a dispositional orderif the court finds by clear and convincing evidence a materialchange of circ*mstances and that such modification is in thechild’s best interests: Provided, That a dispositional orderpursuant to subdivision (6), subsection (a) of section five shallnot be modified after the child has been adopted, except asprovided in subsections (b) and (c) of this section. Adequate andtimely notice of any motion for modification shall be given to thechild's counsel, counsel for the child's parent or custodian, andto the state department and any person entitled to notice and theright to be heard. The circuit court of origin has exclusivejurisdiction over placement of the child, and such placement shallnot be disrupted or delayed by any administrative process of thedepartment.

(b) If the child is removed or relinquished from an adoptivehome or other permanent placement after the case has beendismissed, any party with notice thereof and the receiving agencyshall promptly report the matter to the circuit court of origin,the department and the child's counsel, and the court shallschedule a permanency hearing within sixty days of the report tothe circuit court, with notice given to any appropriate parties andpersons entitled to notice and the right to be heard. Thedepartment shall convene a multidisciplinary treatment team meetingwithin thirty days of the receipt of notice of permanent placementdisruption.

(c) If a child has not been adopted, the child or departmentmay move the court to place the child with a parent or custodianwhose rights have been terminated and/or restore such parent’s orguardian’s rights. Under these circ*mstances, the court may ordersuch placement and/or restoration of a parent’s or guardian’srights if it finds by clear and convincing evidence a materialchange of circ*mstances and that such placement and/or restorationis in the child’s best interests.

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

(a) If the court finds, pursuant to any provision of thisarticle, that the department is not required to make reasonableefforts to preserve the family, then, notwithstanding any otherprovision, a permanency hearing must be held within thirty daysfollowing the entry of the court order so finding, and a permanentplacement review hearing must be conducted at least once everythree calendar months thereafter until a permanent placement isachieved.

(a) (b) If, twelve months after receipt by the department orits authorized agent of physical custody of a child either by acourt ordered placement or by a voluntary agreement, the departmenthas not placed a child in an adoptive home or placed the child witha natural parent or placed the child in legal guardianship orpermanently placed the child with a fit and willing relative, thedepartment shall file with the court a petition for review of thecase court shall hold a permanency hearing. The department shallalso file with the court a report with the court detailing theefforts that have been made to place the child in a permanent homeand copies of the child's case plan, including the permanency planas defined in section five, article six of this chapter. Copies ofthe report shall be sent to the child's attorney and be madeavailable to the child's parent(s) or guardian parties and allpersons entitled to notice and the right to be heard. The courtshall schedule a hearing in chambers, giving notice and the rightto be present to: The child's attorney; the child, if twelve yearsof age or older; the child's parents; the child's guardians; thechild's foster parents; any preadoptive parent or any relativeproviding care for the child; any person entitled to notice and theright to be heard; and such other persons as the court may, in itsdiscretion, direct. The child's presence may be waived by thechild's attorney at the request of the child or if the child wouldsuffer emotional harm. The purpose of the hearing is to review thechild's case, to determine whether and under what conditions thechild's commitment to the department shall continue and todetermine what efforts are necessary to provide the child with apermanent home. In the case of a child who will not be returned tohis or her parent, the court shall consider in-state and out-of-state placement options, and, if the court considers an out-of-state placement, the court shall determine whether such placementis in the best interests of the child; in the case of a child whohas attained sixteen years of age, the court shall determine theservices needed to assist the child to make the transition fromfoster care to independent living. In any case in which the courtdecides to order the child placed in an out-of-state facility orprogram it shall set forth in the order directing the placement thereasons why the child was not placed in an in-state facility orprogram. At the conclusion of the hearing the court shall, inaccordance with the best interests of the child, enter anappropriate order of disposition containing all such appropriatefindings. The court order shall state: (1) Whether or not thedepartment made reasonable efforts to preserve the family and toprevent out-of-home placement or that the specific situation madesuch effort unreasonable; (2) whether or not the department madereasonable efforts to finalize the permanency plan for the child;and (3) identify services required to meet the child's needs. Provided, That the department is not required to make reasonableefforts to preserve the family if the court determines any of theconditions set forth in subdivision (7), subsection (a), sectionfive of this article exist. The court shall possess continuingjurisdiction over cases reviewed under this section for so long asa child remains in temporary foster care or, when a child isreturned to his or her natural parents subject to conditionsimposed by the court, for so long as the conditions are effective.

(b) (c) The state department court shall file a supplementarypetition for review with the court shall conduct another permanencyhearing within twelve months and every twelve months thereafter forevery each child that who remains in the physical or legal custodyof the department until the child is placed in an adoptive home orreturned to his or her parents or placed in legal guardianship orpermanently placed with a fit and willing relative.

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

(d) (e) The state department shall file a report with thecourt in any case where any child in the temporary or permanentcustody of the state receives more than three placements in oneyear no later than thirty days after the third placement. Thisreport shall be provided to all parties and their counsel. andpersons entitled to notice and the right to be heard. Upon motionby any party, the court shall review these placements and determinewhat efforts are necessary to provide the child with a stablefoster or temporary permanent home: Provided, That no report shallbe provided to any parent or parent's attorney whose parentalrights have been terminated pursuant to this article.

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

(f) (g) Nothing in this article precludes any party frompetitioning the court for review of the child's case at any time.The court shall grant such petition upon a showing that there is achange in circ*mstance or needs of the child that warrants courtreview.

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

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

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

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

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

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

(4) The order granting the improvement period requires thedepartment to prepare and submit to the court an individualizedfamily case plan in accordance with the provisions of sectionthree, article six-d of this chapter;

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

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

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

(4) Since the initiation of the proceeding, the respondent hasnot previously been granted any improvement period or therespondent demonstrates that since the initial improvement period,the respondent has experienced a substantial change incirc*mstances. Further, the respondent shall demonstrate that dueto that change in circ*mstances the respondent is likely to fullyparticipate in a further improvement period; and

(5) The order granting the improvement period requires thedepartment to prepare and submit to the court an individualizedfamily case plan in accordance with the provisions of sectionthree, article six-d of this chapter.

(c) The court may grant an improvement period not to exceedsix months as a disposition pursuant to section five of thisarticle when:

(1) The respondent moves in writing for the improvementperiod;

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

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

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

(4) Since the initiation of the proceeding, the respondent hasnot previously been granted any improvement period or therespondent demonstrates that since the initial improvement period,the respondent has experienced a substantial change incirc*mstances. Further, the respondent shall demonstrate that dueto that change in circ*mstances, the respondent is likely to fullyparticipate in the improvement period; and

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

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

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

(f) When any respondent is granted an improvement periodpursuant to the provisions of this article, the department shallmonitor the progress of such person in the improvement period. Whenthe respondent fails to participate in any service mandated by theimprovement period, the state department shall initiate action toinform the court of that failure. When the department demonstratesthat the respondent has failed to participate in any provision ofthe improvement period, the court shall forthwith terminate theimprovement period.

(g) A court may extend any improvement period granted pursuantto subsections (b) or (c) of this section for a period not toexceed three months when the court finds that the respondent hassubstantially complied with the terms of the improvement period;that the continuation of the improvement period will notsubstantially impair the ability of the department to permanentlyplace the child; and that such extension is otherwise consistentwith the best interest of the child.

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

(i) This section may not be construed to prohibit a court fromordering a respondent to participate in services designed toreunify a family or to relieve the department of any duty to makereasonable efforts to reunify a family required by state or federallaw.

(j) Any hearing scheduled pursuant to the provisions of thissection may be continued only for good cause upon a written motionproperly served on all parties. When a court grants suchcontinuance, the court shall enter an order granting thecontinuance which shall specify a future date when the hearing willbe held.

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

(l) Notwithstanding any other provision of this section, nocombination of any improvement periods or extensions thereto maycause a child to be in foster care more than fifteen months of themost recent twenty-two months, unless the court finds compellingcirc*mstances by clear and convincing evidence that it is in thechild’s best interests to extend the time limits contained in thisparagraph.

ARTICLE 6A. REPORTS OF CHILDREN SUSPECTED OF BEING ABUSED ORNEGLECTED.

§49-6A-5. Reporting procedures.

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

(b) A copy of any report of serious physical abuse, sexualabuse or assault shall be forwarded by the department to theappropriate law-enforcement agency, the prosecuting attorney or thecoroner or medical examiner's office. All reports under thisarticle shall be confidential. and unless there are pendingproceedings with regard thereto shall be destroyed thirty yearsfollowing their preparation. Reports of known or suspectedinstitutional child abuse or neglect shall be made and received asall other reports made pursuant to this article.

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

(a) The Department of Health and Human Resources shall developa unified child and family case plan for every family wherein aperson has been referred to the department after being allowed animprovement period under the provisions of section twelve, articlesix of this chapter or where the child is placed in foster care Thecase plan must be filed within sixty days of the child coming intofoster care or within thirty days of the inception of theimprovement period, whichever occurs first. The department may alsoprepare a family case plan for any person who voluntarily seekschild abuse and neglect services from the department, or who isreferred to the department by another public agency or privateorganization. The family case plan is to clearly set forth anorganized, realistic method of identifying family problems and thelogical steps to be used in resolving or lessening those problems.Every family case plan prepared by the department shall contain thefollowing: The case plan provisions shall comply with federal lawand the rules of procedure for child abuse and neglect proceedings.

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

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

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

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

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

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

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

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

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

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

(b) In cases where the family has been referred to thedepartment by a court under the provisions of this chapter, andfurther action before the court is pending, the family case plandescribed in subsection (a) of this section shall be furnished tothe court within thirty days after the entry of the order referringthe case to the department, and shall be available to counsel forthe parent, guardian or custodian and counsel for the child orchildren. The department shall encourage participation in convenea multidisciplinary treatment team, which shall develop thedevelopment the family case plan by the parent, guardian orcustodian. Parents, guardians or custodians shall participate fullyin the development of the case plan, and the child shall also fullyparticipate if sufficiently mature and if the child is above theage of twelve years and the child's participation is otherwiseappropriate. by the child. It shall be the duty of counsel for theparticipants to participate in the development of the family caseplan. The family case plan may be modified from time to time by thedepartment to allow for flexibility in goal development, and ineach such case the modifications shall be submitted to the court inwriting. Reasonable efforts to place a child for adoption or witha legal guardian may be made at the same time as reasonable effortsare being made to prevent removal or to make it possible for achild to return safely home. The court shall examine the proposedfamily case plan or any modification thereof, and upon a finding bythe court that the plan or modified plan can be easilycommunicated, explained and discussed so as to make theparticipants accountable and able to understand the reasons for anysuccess or failure under the plan, the court shall inform theparticipants of the probable action of the court if goals are metor not met.

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

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

(B) A prognosis for each of the goals projected in the familycase plan, assessing the capacity of the parent, guardian orcustodian to achieve the goal and whether available treatmentservices are likely to have the desired outcome;

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

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

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

(2) Because the nature of the information contained in theworker's case plan described in subdivision (1) of this subsectionmay, in some cases, be construed to be negative with respect to theprobability of change, or may be viewed as a caseworker's attemptto impose personal values into the situation, or may raise barriersof hostility and resistance between the caseworker and the familymembers, the worker's case plan shall not be made available to thecourt or to persons outside of the department, but shall be used bythe department for the purpose of confirming the effectiveness ofthe family case plan or for determining that changes in the familycase plan need to be made.

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

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

(2) For the establishment and maintenance of centers, servingdefined geographic areas, staffed by multidisciplinary teams andcommunity teams of personnel trained in the prevention,identification and treatment of child abuse and neglect cases, toprovide a broad range of services related to child abuse andneglect, including direct support and supervision of satellitecenters and attention homes, as well as providing advice andconsultation to individuals, agencies and organizations whichrequest such services;

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

(4) For other innovative programs and projects that showpromise of successfully identifying, preventing or remedying thecauses of child abuse and neglect, including, but not limited to,programs and services designed to improve and maintain parentingskills, programs and projects for parent self help, and forprevention and treatment of drug-related child abuse and neglect;and

(5) Assisting public agencies or nonprofit privateorganizations or combinations thereof in making applications forgrants from, or in entering into contracts with, the Secretary ofthe federal Department of Health and Human Services fordemonstration programs and projects designed to identify, preventand treat child abuse and neglect.

(e) (d) Agencies, organizations and programs funded to carryout the purposes of this section shall be structured so as tocomply with any applicable federal law, any regulation of thefederal Department of Health and Human Services or the secretarythereof, and any final comprehensive plan of the federal advisoryboard on child abuse and neglect. In funding organizations, thedepartment shall, to the extent feasible, ensure that parentalorganizations combating child abuse and neglect receivepreferential treatment.

ARTICLE 7. GENERAL PROVISIONS.

§49-7-1. Confidentiality of records.

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

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

(1) Where otherwise authorized by this chapter;

(2) To:

(A) The child;

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

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

(4) Pursuant to an order of a court of record: Provided, Thatthe court shall review such record or records for relevancy andmateriality to the issues in the proceeding and safety, and mayissue an order to limit the examination and use of the records orany part thereof.

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

(1) Federal, state or local government entities, or any agentof such entities, including law-enforcement agencies andprosecuting attorneys, having a need for such information in orderto carry out its responsibilities under law to protect childrenfrom abuse and neglect;

(2) The child fatality review team;

(3) Child abuse citizen review panels;

(4) Multidisciplinary investigative and treatment teams; or

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

(d) In the event of a child fatality or near fatality due tochild abuse and neglect, information relating to such fatality ornear fatality shall be made public by the Department of Health andHuman Resources and to the entities described in subsection (c)ofthis section, all under the circ*mstances described in thatsubsection: Provided, That information released by the Departmentof Health and Human Resources pursuant to this subsection shall notinclude the identity of a person reporting or making a complaint ofchild abuse or neglect. For purposes of this subsection, “nearfatality” means any medical condition of the child which iscertified by the attending physician to be life threatening.

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

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

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

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

(a) For each child who remains in foster care as a result ofa juvenile proceeding or as a result of a child abuse and neglectproceeding, the circuit court with the assistance of themultidisciplinary treatment team shall conduct quarterly statusreviews in order to determine the safety of the child, thecontinuing necessity for and appropriateness of the placement, theextent of compliance with the case plan, and the extent of progresswhich has been made toward alleviating or mitigating the causesnecessitating placement in foster care, and to project a likelydate by which the child may be returned to and safety maintained inthe home or placed for adoption or legal guardianship. Quarterlystatus reviews shall commence three months after the entry of theplacement order. The permanency hearing provided for in subsection(c) of this section may be considered a quarterly status review.

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

(c) For each child or transitioning adult who continues toremain in foster care, the circuit court shall conduct a permanencyhearing no later that twelve months after the date the child ortransitioning adult is considered to have entered foster care, andat least once every twelve months thereafter until permanency isachieved. For purposes of permanency planning for transitioningadults, the circuit court shall make factual findings andconclusions of law as to whether the department made reasonableefforts to finalize a permanency plan to prepare a transitioningadult for emancipation or independence or another approvedpermanency option such as, but not limited to, adoption or legalguardianship pursuant to the West Virginia Guardianship andConservatorship Act.

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

And,

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

Eng. Com. Sub. for Senate Bill No. 484--A Bill to repeal §49-5-21 of the Code of West Virginia, 1931, as amended; to repeal §49-6-5a of said code; to amend and reenact §49-1-3 of said code; toamend and reenact §49-2-17 of said code; to amend and reenact §49-5-13 of said code; to amend and reenact §49-5D-2, §49-5D-3 and §49-5D-3a of said code; to amend said code by adding thereto two newsections, designated §49-5D-3b and §49-5D-3c; to amend and reenact§49-6-2, §49-6-3, §49-6-5, §49-6-6, §49-6-8 and §49-6-12 of saidcode; to amend and reenact §49-6A-5 of said code; to amend andreenact §49-6D-3 of said code; to amend and reenact §49-7-1 of saidcode; and to amend said code by adding thereto a new section,designated §49-7-36, all relating generally to child welfare;defining “court appointed special advocate program”; establishinga system of assistance from funds appropriated to the Department ofHealth and Human Resources for facilitating the adoption or legalguardianship of children who are dependents of the department or ofa child welfare agency licenced to place children for adoption;providing when a juvenile is ordered into out-of-state placement,the reasons why the juvenile was not placed in state be included inthe court order; adding additional members to the multidisciplinaryteam; providing a process for multidisciplinary treatment planningin cases involving child abuse and neglect; providing a process formultidisciplinary treatment planning in cases involving statusoffense or delinquency; increasing the continuing education hoursrequired for attorneys appointed in child abuse and neglect cases;providing that reasonable efforts to preserve the family are notrequired when a person is required by state or federal law toregister with a sex offender registry; providing that the court maymodify a dispositional order when it finds a material change ofcirc*mstances has occurred and such modification is in the child’sbest interests; clarifying that the circuit court of origin hasexclusive jurisdiction over placement of a child in a child abuseand neglect case; providing a process for permanency hearings andpermanent placement reviews; providing that any combination ofimprovement periods cannot cause a child to be in foster care morethan fifteen months of the most recent twenty-two months unless thecourt finds that it is in the child’s best interests; providing formodifications and requests for expunging of records; requiring thesecretary to promulgate legislative rules; providing guidelines forunified child and family case plans; confidentiality of records;and requiring a quarterly status review hearing and yearlypermanency hearings for transitioning adults.

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

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

The nays were: None.

Absent: None.

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

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

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

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

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

Eng. Com. Sub. for Senate Bill No. 555, Providing contractorexception to sales and use tax exemption for certain nonprofityouth organization.

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

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

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

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

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

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

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

And,

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

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

On motion of Senator Stollings, the following amendment to theHouse of Delegates amendments to the bill was reported by the Clerkand adopted:

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

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

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

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

The nays were: None.

Absent: None.

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

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

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

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

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

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

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

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

ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.

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

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

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

(c) (1) The form of the bond shall be approved by thesecretary and may include, at the option of the operator, suretybonding, collateral bonding (including cash and securities),establishment of an escrow account, self bonding or a combinationof these methods. If collateral bonding is used, the operator mayelect to deposit cash or collateral securities or certificates asfollows: Bonds of the United States or its possessions of theFederal Land Bank or of the Homeowners' Loan Corporation; fullfaith and credit general obligation bonds of the State of WestVirginia or other states and of any county, district ormunicipality of the State of West Virginia or other states; orcertificates of deposit in a bank in this state, which certificatesshall be in favor of the department. The cash deposit or marketvalue of the securities or certificates shall be equal to orgreater than the penal sum of the bond. The secretary shall, uponreceipt of any deposit of cash, securities or certificates,promptly place the same with the Treasurer of the State of WestVirginia whose duty it is to receive and hold the deposit in thename of the state in trust for the purpose for which the deposit ismade when the permit is issued. The operator making the deposit isentitled, from time to time, to receive from the State Treasurer,upon the written approval of the secretary, the whole or anyportion of any cash, securities or certificates so deposited, upondepositing with him or her in lieu thereof cash or other securitiesor certificates of the classes specified in this subsection havingvalue equal to or greater than the sum of the bond.

(2) The secretary may approve an alternative bonding system ifit will: (A) Reasonably assure that sufficient funds will beavailable to complete the reclamation, restoration and abatementprovisions for all permit areas which may be in default at anytime; and (B) provide a substantial economic incentive for thepermittee to comply with all reclamation provisions.

(d) The secretary may accept the bond of the applicant itselfwithout separate surety when the applicant demonstrates to thesatisfaction of the secretary the existence of a suitable agent toreceive service of process and a history of financial solvency andcontinuous operation sufficient for authorization to self insure.

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

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

(g) The Special Reclamation Fund previously created iscontinued. The Special Reclamation Water Trust Fund is createdwithin the State Treasury into and from which moneys shall be paidfor the purpose of assuring a reliable source of capital to reclaimand restore water treatment systems on forfeited sites. The moneysaccrued in both funds, any interest earned thereon and yield frominvestments by the State Treasurer or West Virginia InvestmentManagement Board are reserved solely and exclusively for thepurposes set forth in this section and section seventeen, articleone of this chapter. The funds shall be administered by thesecretary who is authorized to expend the moneys in both funds forthe reclamation and rehabilitation of lands which were subjected topermitted surface mining operations and abandoned after August 3,1977, where the amount of the bond posted and forfeited on the landis less than the actual cost of reclamation, and where the land isnot eligible for abandoned mine land reclamation funds underarticle two of this chapter. The secretary shall develop a long-range planning process for selection and prioritization of sites tobe reclaimed so as to avoid inordinate short-term obligations ofthe assets in both funds of such magnitude that the solvency ofeither is jeopardized. The secretary may use both funds for thepurpose of designing, constructing and maintaining water treatmentsystems when they are required for a complete reclamation of theaffected lands described in this subsection. The secretary mayalso expend an amount not to exceed ten percent of the total annualassets in both funds to implement and administer the provisions ofthis article and, as they apply to the Surface Mine Board, articlesone and four, chapter twenty-two-b of this code.

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

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

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

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

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

(2) In managing the Special Reclamation Program, the secretaryshall: (A) Pursue cost-effective alternative water treatmentstrategies; and (B) conduct formal actuarial studies every twoyears and conduct informal reviews annually on the SpecialReclamation Fund and Special Reclamation Water Trust Fund.

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

(A) Determine the feasibility of creating an alternateprogram, on a voluntary basis, for financially sound operators bywhich those operators pay an increased tax into the SpecialReclamation Fund in exchange for a maximum per-acre bond that isless than the maximum established in subsection (a) of thissection;

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

(C) Determine the feasibility for sites requiring waterreclamation by creating a separate water reclamation securityaccount or bond for the costs so that the existing reclamation bondin place may be released to the extent it exceeds the costs ofwater reclamation.

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

(i) This special reclamation tax shall be collected by theState Tax Commissioner in the same manner, at the same time andupon the same tonnage as the minimum severance tax imposed byarticle twelve-b, chapter eleven of this code is collected: Provided, That under no circ*mstance shall the special reclamationtax be construed to be an increase in either the minimum severancetax imposed by said article or the severance tax imposed by articlethirteen of said chapter.

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

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

(l) The Tax Commissioner shall deposit the moneys collectedwith the Treasurer of the State of West Virginia to the credit ofthe Special Reclamation Fund and Special Reclamation Water TrustFund.

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

(n) To the extent that this section modifies any powers,duties, functions and responsibilities of the department that mayrequire approval of one or more federal agencies or officials inorder to avoid disruption of the federal-state relationshipinvolved in the implementation of the federal Surface MiningControl and Reclamation Act, 30 U. S. C. §1270 by the state, themodifications will become effective upon the approval of themodifications by the appropriate federal agency or official.

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

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

The nays were: None.

Absent: None.

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

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

The nays were: None.

Absent: None.

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

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

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

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

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

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

ARTICLE 2. STATE BOARD OF EDUCATION.

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

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

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

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

(3) In addition to the cost factor, large areas of WestVirginia are without broadband Internet access or without adequatebroadband Internet access speeds, which results in diminishedopportunities for rural residents to participate in the rapidlyunfolding digital revolution compared to their nonrural neighbors. Citizens living in these areas have few opportunities to becomeadept in computer technology. Therefore, most such citizens,especially adults seeking to earn a GED years after leaving thepublic school system, are not proficient or even comfortable usingthe Internet.

(4) Individuals who may benefit most from earning a GEDdiploma are those who lack many of the skills needed to secureemployment or to function successfully in an age dependent upontechnology. Because such individuals also lack the financialresources to obtain those needed skills, if the GED is unattainablethey are likely to remain in a state of poverty.

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

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

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

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

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

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

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

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

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

(B) Retaining paper and pen testing for those individuals whor*quest or require it; or

(C) Eliminating or reducing significantly the difficulty forindividuals who are not comfortable or proficient in taking onlineexaminations.

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

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

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

The nays were: None.

Absent: None.

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

Senator Unger moved that the bill take effect from passage.

The nays were: None.

Absent: None.

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

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

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

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

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

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

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

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

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

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

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

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

The nays were: None.

Absent: None.

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

Senator Unger moved that the bill take effect from passage.

The nays were: None.

Absent: None.

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

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

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

Senate Concurrent Resolution No. 50, Requesting DOH namebridge in Monongalia County "Lt. Col. Carroll Baxter Lilly MemorialBridge".

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

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

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

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

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

Delegates Staggers, Ferns and Snuffer.

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

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

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

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

Referred to the Committee on Rules.

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

House Concurrent Resolution No. 53--Requesting that the JointCommittee on Government and Finance authorize a study of therelationship between increases in seismic events and hydrocarbonproduction and exploration in the State of West Virginia.

Referred to the Committee on Rules.

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

House Concurrent Resolution No. 54--Requesting that the Jointcommittee on Government and Finance authorize a study on thecompliance of the Americans with Disabilities Act in stategovernmental buildings throughout the State of West Virginia.

Referred to the Committee on Rules.

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

House Concurrent Resolution No. 82--Requesting the JointCommittee on Government and Finance to study the policies,procedures, issues and recommendations related to assuring thesafety of state employees or employees providing contractualservices on behalf of the State of West Virginia who are requiredto make field, community or home visits to clients, consumers ormembers of the public.

Referred to the Committee on Rules.

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

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

Referred to the Committee on Rules.

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

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

Referred to the Committee on Transportation andInfrastructure.

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

House Concurrent Resolution No. 103--Requesting that bridge23-73-2.31 at the intersection of Mt. Gay Road and Route 44 inLogan County, West Virginia, be named the “Tennis “TK” KillenMemorial Bridge”.

Referred to the Committee on Transportation andInfrastructure.

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

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

Referred to the Committee on Transportation andInfrastructure,

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

House Concurrent Resolution No. 126--Celebrating the life andlamenting the passing of Hulett C. Smith, the Twenty-SeventhGovernor of the State of West Virginia, outstanding civic andcommunity leader, the state’s first Commissioner of Commerce, aveteran of World War II, a loving father and grandfather, anddevoted public servant to the people of his State and country.

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

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

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

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

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

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

Resolved by the Legislature of West Virginia:

That pursuant to Rule No. 3 of the Joint Rules of the Senateand House of Delegates, the Committee of Conference is herebyextended for a period of one day for the express purpose ofconsideration of matters of disagreement between the two houses.

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

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

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

The Senate proceeded to the fourth order of business.

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

Your Committee on Finance has had under consideration

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

And has amended same.

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

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

Respectfully submitted,

Roman W. Prezioso, Jr.,

Chair.

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

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

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

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

ARTICLE 3. PURCHASING DIVISION.

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

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

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

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

(3) The economy and general welfare of West Virginia and itspeople and the economy and general welfare of the United States areinseparably linked to the preservation and development ofmanufacturing, harvesting and mineral extraction industries in thisstate, as well as all the other states of this nation;

(4) The state’s taxpayer dollars are better spent ifreinvested with its individual and employer taxpayers in order tofoster job retention and growth, particularly within themanufacturing, harvesting and mineral extraction sectors, and toensure a broad and healthy tax base for future investments vital tothe state’s infrastructure; and

(5) West Virginia’s procurement policies should reflect thestate’s and the nation’s principles ensuring that the products ofthose companies and workers who abide by workplace safety andenvironmental laws, rules and regulations should be rewarded witha commonsense preference in government contracting.

(b) Declaration of policy. -- It is the policy of WestVirginia that the state and its political subdivisions should aidand promote the economy of this state and the United States byrequiring a preference for the procurement of iron, steel,manufactured goods, coal and timber produced in the United Statesin all contracts for the construction, reconstruction, repair,improvement or maintenance of public buildings and public worksprojects.

(c) The Purchasing Division and the Division of Labor shalljointly convene the task force created in subsection (d) of thissection to study the use of American-made construction materialsand manufactured goods in the various aspects of the constructionand maintenance of public buildings and public works projects ofthe state and its political subdivisions which are funded in partby state grants, state loans or state appropriations.

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

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

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

(3) One representative each from the Division of Highways, theSchool Building Authority, the Water Development Authority, theGeneral Services Division and the Higher Education PolicyCommission; and

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

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

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

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

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

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

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

On motion of Senator Unger, the constitutional rule requiringa bill to be read on three separate days was suspended by a vote offour fifths of the members present, taken by yeas and nays.

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

The nays were: None.

Absent: None.

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

The nays were: None.

Absent: None.

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

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

Eng. Com. Sub. for House Bill No 4263--A Bill to amend theCode of West Virginia, 1931, as amended, by adding thereto, a newsection, designated §5A-3-57, relating to creating a “Buy AmericanTask Force”; setting forth legislative findings; declaring statepolicy; requiring the Purchasing Division and the Division of Laborto convene a task force to study the use of American madeconstruction materials and goods; setting forth the membership ofthe task force; specifying areas of study; and requiring report toLegislature by December 31, 2012.

Senator Unger moved that the bill take effect from passage.

The nays were: None.

Absent: None.

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

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

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

The Senate again proceeded to the fourth order of business.

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

Your Committee on Rules has had under consideration

Senate Concurrent Resolution No. 53, Requesting JointCommittee on Government and Finance study drivers' licensesuspensions.

Senate Concurrent Resolution No. 67, Requesting JointCommittee on Government and Finance study general revenue fundingof community and technical colleges.

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

Senate Concurrent Resolution No. 69, Requesting JointCommittee on Government and Finance study independent redistrictingcommission.

Senate Concurrent Resolution No. 86, Requesting JointCommittee on Government and Finance study election candidateeligibility.

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

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

And,

Senate Concurrent Resolution No. 91, Requesting JointCommittee on Government and Finance study WV Freedom of InformationAct.

And reports the same back with the recommendation that theyeach be adopted.

Respectfully submitted,

Jeffrey V. Kessler,

Chairman ex officio.

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

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

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

The Senate proceeded to the sixth order of business.

Senators Beach, Klempa and Foster offered the followingresolution:

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

Whereas, This Legislature is committed to availability, accessand affordability of patients to high quality health care servicesby licensed health care professionals; and

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

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

Whereas, The health care model in place, despite itsestablished history, has not been successful in providing care toall patients in West Virginia, including the uninsured; and

Whereas, Advanced practice nursing scope of practice isincreasingly expanding in other states, including the border stateof Maryland, thus decreasing the likelihood of keeping the bestadvanced practice nurses in West Virginia; and

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

Whereas, The Institute of Medicine, the health arm of theNational Academy of Sciences is an independent, nonprofitorganization working outside of government to provide unbiased,authoritative advice to decision makers and the public, hasrecommended that states modify scope of practice regulations toallow full autonomy for advanced practice nurses (Future ofNursing, October 2010); and

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

Whereas, The interim study would provide an opportunity for adiscussion on scope of practice expansion for advanced practicenurses by and between health care regulatory boards, education andtraining institutions, citizens, advocates, patients, health careprofessionals and lawmakers; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby requests the Joint Committee onGovernment and Finance to study the scope of practice of advancedpractice nurses and the need for its expansion to improve thequality of health care, increase patient access and to allowpatients free choice of their health care providers; and, be it

Further Resolved, That the Joint Committee on Government andFinance is hereby requested to study the scope of practicelimitations on advance practice nurses in West Virginia and theneed for the expansion of practice for these health careprofessionals; and, be it

Further Resolved, That the Joint Committee on Government andFinance report to the regular session of the Legislature, 2013, onits findings, conclusions and recommendations, together with draftsof any legislation necessary to effectuate its recommendations;and, be it

Further Resolved, That the expenses necessary to conduct thestudy, to prepare a report and to draft necessary legislation bepaid from legislative appropriations to the Joint Committee onGovernment and Finance.

At the request of Senator Unger, unanimous consent beinggranted, the resolution was taken up for immediate considerationand referred to the Committee on Rules.

Senators Beach and Klempa offered the following resolution:

Senate Concurrent Resolution No. 94--Requesting the JointCommittee on Government and Finance to study the use of privatecontractors who perform work for the State of West Virginia.

Whereas, The use of private contractors who perform work inthe State of West Virginia is an important issue because the Stateof West Virginia is increasingly using private contractors on stateprojects that employ citizens of other countries who may be locatedwithin or outside of the United States of America; and

Whereas, The procurement of goods manufactured in the UnitedStates, and West Virginia in particular, and of services performedin the United States, and West Virginia in particular, would likelybenefit West Virginia by allowing increased oversight over suchgoods and services and by providing employment opportunities toWest Virginians; and

Whereas, West Virginia does not collect information on its useof private contractors, including the cost, quality of product,citizenship and residency of its workers, and salaries and benefitsprovided to its workers, that is accessible to the public; and

Whereas, It is unclear if it is in the best interest of theState of West Virginia to use certain private contractors andout-source work when looking at overall cost-effectiveness,economic impact on West Virginia workers, security issues, andquality of work; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby requests the Joint Committee onGovernment and Finance to study the use of private contractors whoperform work for the State of West Virginia; and, be it

Further Resolved, That the Joint Committee on Government andFinance is hereby requested to study the use of private contractorswho perform work for the State of West Virginia, including whichagencies or entities of state government use private contractors,the identity of the private contractors, the type of work theyperform, the cost and length of their contracts, how many workersthey employ to perform the work, how many of the workers arecitizens of the State of West Virginia and the United States ofAmerica, the quality of the work and products of such privatecontractors and the wages and benefits of the workers employed bythe private contractors; and, be it

Further Resolved, That the expenses necessary to conduct thisstudy, to prepare a report and to draft necessary legislation bepaid from legislative appropriations to the Joint Committee onGovernment and Finance.

At the request of Senator Unger, unanimous consent beinggranted, the resolution was taken up for immediate considerationand referred to the Committee on Rules.

Senators Tucker, Wells, Kessler (Mr. President), Williams,Plymale, Stollings and Klempa offered the following resolution:

Senate Resolution No. 58--Memorializing the life of MichaelThomas Barrett, native West Virginian and gold medalist at the 1968Olympics.

Whereas, Michael Thomas Barrett was born in Montgomery, WestVirginia, on September 5, 1943; and

Whereas, Michael Thomas Barrett was raised in Webster Springsand Richwood, West Virginia, and graduated from Richwood HighSchool; and

Whereas, Michael Thomas Barrett attended college at WestVirginia Tech, in Montgomery, West Virginia; and

Whereas, While attending West Virginia Tech, Michael ThomasBarrett excelled in the sport of basketball, leading the GoldenBears basketball team to the 1963 West Virginia Conferencetournament championship and was named Most Valuable Player; and

Whereas, Michael Thomas Barrett led the Golden Bearsbasketball team to regular season titles in 1964 and 1965, and waslater honored by having his No. 10 jersey retired; and

Whereas, After his collegiate career, Michael Thomas Barrettentered the United States Navy, and while enlisted, earned theopportunity to participate as a member of the 1968 Men’s BasketballOlympic team and helped the USA team beat Yugoslavia to earn goldmedal honors in Mexico City; and

Whereas, Michael Thomas Barrett joined Jerry West as the onlytwo West Virginians to win a gold medal in Olympic basketball; and

Whereas, In 1968, Michael Thomas Barrett was named WestVirginia’s Amateur Athlete of the Year; and

Whereas, After the Olympics, Michael Thomas Barrett playedprofessional basketball in the American Basketball Association forthree seasons, averaging 13.4 points per game over his professionalcareer; and

Whereas, Following his basketball career, Michael ThomasBarrett became a successful businessman in Nashville, Tennessee,where he worked for the Wrangler jeans company; and

Whereas, Although he lived in Tennessee, Michael ThomasBarrett never lost his love for West Virginia, often making tripsback to Montgomery and Richwood; and

Whereas, Sadly, Michael Thomas Barrett passed away on Monday,August 8, 2011, at the age of 67, leaving behind his beloved wifeof 44 years, Carolyn, his brother Scott, and a host of friends, allof whom will cherish his memory for many years to come; therefore,be it

Resolved by the Senate:

That the Senate hereby memorializes the life of Michael ThomasBarrett, native West Virginian and gold medalist at the 1968Olympics; and, be it

Further Resolved, That the Senate expresses its deepestsympathy to the family of Michael Thomas Barrett; and, be it

Further Resolved, That the Clerk is hereby directed to forwarda copy of this resolution to the family of Michael Thomas Barrett.

At the request of Senator Tucker, unanimous consent beinggranted, the resolution was taken up for immediate consideration,reference to a committee dispensed with, and adopted.

On motion of Senator Unger, the Senate recessed for oneminute.

Upon expiration of the recess, the Senate reconvened andresumed business under the sixth order.

Senators Stollings, Kessler (Mr. President), Plymale,Williams, Prezioso, Unger, Foster, Jenkins and Klempa offered thefollowing resolution:

Senate Resolution No. 59--Recognizing the dedicated service ofWest Virginia’s family physicians to the West Virginia Legislatureon the twenty-third anniversary of the Doc for the Day program.

Whereas, The Doc for the Day program was started in 1989 bythe West Virginia Academy of Family Physicians to provide freemedical services during the regular session of the Legislature; and

Whereas, Family physicians from around the state volunteertheir time to the Doc for the Day program during each day of theregular session of the Legislature and offer medical care tolegislators, staff, government officials and the general publicvisiting the Capitol Complex; and

Whereas, The Doc for the Day program is an educationaltraining and health service forum for medical residents and facultyfrom the Charleston Division of the West Virginia University Schoolof Medicine and the Joan C. Edwards School of Medicine at MarshallUniversity; and

Whereas, In addition to providing medical care for minormedical conditions, the Doc for the Day program has also providedmedical treatment for serious life-threatening injuries andillness, including: hypertension, heart attacks, respiratoryarrest, aneurysms, strokes, broken bones, head trauma,appendicitis, pneumonia, kidney stones, and major lacerations; and

Whereas, Over 42,500 patients have received quality medicalcare without charge from the Doc for the Day program; and

Whereas, West Virginia’s Doc for the Day program has served asa model for free medical care programs by many other statelegislatures across the nation; and

Whereas, The knowledge and expertise in family medicine byphysicians who volunteer for the Doc for the Day program and thewillingness to share their volunteer medical service has been, andcontinues to be, appreciated by the Legislature; and

Whereas, The 2012 Regular Session of the Legislature marks thetwenty-third anniversary of the Doc for the Day program; therefore,be it

Resolved by the Senate:

That the Senate recognizes the dedicated service of WestVirginia’s family physicians to the West Virginia Legislature onthe twenty-third anniversary of the Doc for the Day program; and,be it

Further Resolved, That the Senate extends its appreciation tothe West Virginia Academy of Family Physicians for its outstandingfree medical program to the West Virginia Legislature on thetwenty-third anniversary of the Doc for the Day program; and be it

Further Resolved, That the Senate commends all of thevolunteer physicians who have taken time from their schedules toparticipate in the Doc for the Day program by providing freemedical service to the Legislature; and be it

Further Resolved, That the Clerk is hereby directed to forwarda copy of this resolution to the appropriate representatives of theWest Virginia Academy of Family Physicians.

At the request of Senator Stollings, unanimous consent beinggranted, the resolution was taken up for immediate consideration,reference to a committee dispensed with, and adopted.

On motion of Senator Unger, the Senate recessed for oneminute.

Upon expiration of the recess, the Senate reconvened andresumed business under the sixth order.

Senators McCabe, Plymale, Kessler (Mr. President), Williams,Klempa, Stollings, Foster, Prezioso and Unger offered the followingresolution:

Senate Resolution No. 60--Commemorating the 75th anniversaryof the establishment of the West Virginia Real Estate Commission.

Whereas, On March 13, 1937, the West Virginia Legislaturepassed Senate Bill 107, which established the West Virginia RealEstate Commission and which established a regulatory scheme tolicense and regulate the business of buying, leasing, selling andmanaging real estate for others; and

Whereas, On March 5, 2002, the Legislature passed Senate Bill453, which re-wrote the real estate license act and as part of thisenactment, the Legislature declared: “As a matter of public policy,it is necessary to protect the public interest from theunauthorized, unqualified and unregulated practice of real estatebrokerage through enactment of this article and to regulate thegranting of such privileges and their use.”; and

Whereas, The Commission’s duties and functions include amyriad of responsibilities, including the review of applicationsfor license, the issuance and renewal of licenses, auditing andsupervision of the curriculum and delivery of education,administering examinations required to qualify for and meet therequirements for licensure, review and audit the activities oflicensees, to consider, investigate and review complaints ofpossible license law violations, and to determine and administerappropriate disciplinary actions for license law violations bylicensees as prescribed and authorized by law; and

Whereas, Over the years, the law regulating the conduct ofreal estate broker and salesperson licensees has been amended andexpanded to assure it remained current and relevant; significantchanges include mandatory pre-license education, which was added asa requirement of obtaining a license in 1981 and continuingeducation was required of all licensees beginning in 1990; and

Whereas, The commission employs a dedicated and competentstaff who assist the Commission in carrying out its various dutiesand responsibilities prescribed by law; and

Whereas, For seventy-five years the West Virginia Real EstateCommission has diligently carried out its duties andresponsibilities for the regulation, oversight and supervision ofthe real estate brokerage profession; and

Whereas, The service of the West Virginia Real EstateCommission, its members as well as its employees should not gounrecognized for their valuable service to ensure the protection ofthe citizens of this state in the conduct of real estate brokeragetransactions; therefore, be it

Resolved by the Senate:

That the Senate hereby commemorates the 75th anniversary ofthe establishment of the West Virginia Real Estate Commission; and,be it

Further Resolved, That the Senate invites all members of theWest Virginia Legislature and all citizens of West Virginia to joinin recognizing the West Virginia Real Estate Commission and itsrole in protecting the interests of the citizens of this state inthe conduct of real estate brokerage transactions; and, be it

Further Resolved, That the Clerk is hereby directed to forwarda copy of this resolution to the West Virginia Real EstateCommission.

At the request of Senator McCabe, unanimous consent beinggranted, the resolution was taken up for immediate consideration,reference to a committee dispensed with, and adopted.

Petitions

Senator Barnes presented a petition from Michael Gasper andnumerous West Virginia residents, supporting Senate Bill No. 589(Creating Pain-Capable Unborn Child Protection Act).

Referred to the Committee on Health and Human Resources.

On motion of Senator Unger, the Senate recessed until 1 p.m.today.

Upon expiration of the recess, the Senate reconvened and, atthe request of Senator Unger, and by unanimous consent, returned tothe fourth order of business.

Senator Plymale, from the Committee on Education, submittedthe following report, which was received:

Your Committee on Education has had under consideration

Senate Concurrent Resolution No. 95 (originating in theCommittee on Education)--Requesting the Joint Committee onGovernment and Finance to authorize a study regarding whether thestate's laws regulating harassment in schools provide theconstitutionally required safeguards to student expression.

Whereas, The State of West Virginia has an interest inensuring that all students are safe at school; and

Whereas, The laws governing student behavior in West Virginiamust apply equally and fairly to all students; and

Whereas, The Supreme Court of the United States requiresgovernment to safeguard the First Amendment right of persons inschools to engage in expression; and

Whereas, Laws that regulate harassment sometimes have theeffect of restricting, punishing, or discouraging studentexpression even when such expression does not cause a material andsubstantial disruption of the educational environment of theschool; therefore be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is herebyrequested to authorize a study regarding whether the state's lawsregulating harassment in schools provide the constitutionallyrequired safeguards to student expression; and be it

Further Resolved, That the Joint Committee on Government andFinance report to the regular session of the Legislature, 2013, onits findings, conclusions and recommendation, together with draftsof any legislation necessary to effectuate its recommendations; andbe it

And reports the same back with the recommendation that it beadopted; but with the further recommendation that it first bereferred to the Committee on Rules.

Respectfully submitted,

Robert H. Plymale,

Chair.

On motion of Senator Plymale, the resolution (S. C. R. No. 95)contained in the foregoing report from the Committee on Educationwas referred to the Committee on Rules.

Senator Plymale, from the Committee on Education, submittedthe following report, which was received:

Your Committee on Education has had under consideration

Senate Concurrent Resolution No. 96 (originating in theCommittee on Education)--Recognizing the Deaf or Hard of HearingStudent’s Bill of Rights.

Whereas, Several states and state agencies in the nation haveadopted a Deaf or Hard of Hearing Student’s Bill of Rights in someform; and

Whereas, Hearing loss impacts one of the most basic of humanneeds: the ability to communicate with other human beings; and

Whereas, Many individuals who are deaf or hard of hearing usesign systems as their communication mode, and often American SignLanguage (ASL) is their primary language; and

Whereas, “Communication Mode or Language” means one or more ofthe following systems or methods of communication applicable to thedeaf and hard of hearing: American Sign Language; English-basedmanual or sign systems; oral, aural, or speech-based training; orany other communication mode or language which a student or his orher parents or guardians choose to utilize; and

Whereas, Other individuals who are deaf or hard of hearingexpress and receive language orally and aurally, with or withoutvisual signs or cues; and

Whereas, Typically, young children who are deaf or hard ofhearing lack significant English language skills; and

Whereas, It is essential for the well-being and growth ofstudents who are deaf or hard of hearing that educational programsrecognize the unique nature of hearing loss and ensure that allstudents who are deaf or hard of hearing have appropriate, ongoingand fully accessible educational opportunities in all settings; and

Whereas, There are more than 450 students who are deaf or hardof hearing in the State of West Virginia in grades kindergartenthrough twelfth; and

Whereas, A very small percentage of these students matriculateto post-secondary education after graduating from high school; and

Whereas, Many individuals who are deaf or hard of hearingremain unemployed after completing school due to communicationbarriers; and

Whereas, Students who are deaf or hard of hearing requirespecialized instruction, services, equipment, and materials; and

Whereas, Significant barriers to education and employmentexist for individuals who are deaf or hard of hearing in ourcurrent education system and must be addressed; and

Whereas, Each student’s unique communication mode must berespected, utilized, and developed to an appropriate level ofproficiency; and

Whereas, A student who is deaf or hard of hearing must have aneducation in which teachers of the deaf and hard of hearing and theinterpreter are proficient in the primary language mode of thestudent; and

Whereas, Each teacher of the deaf and hard of hearing must beappropriately trained in this area of exceptionality and besensitive to the cultural and linguistic needs of students who aredeaf or hard of hearing; and

Whereas, A student who is deaf or hard of hearing must receivean education in which teachers of the deaf and hard of hearing,psychologists, speech therapists, evaluators, administrators andother special education personnel understand the unique nature ofhearing loss and are specifically trained to understand thestudent’s needs; and

Whereas, A student who is deaf or hard of hearing must beassessed using tools which accurately evaluate aptitude,achievement level or such other factors as the tool is intended tomeasure. Any assessment must be delivered and administered in thestudent’s native language, must not be discriminatory, and mustprovide a qualified interpreter for its duration; and

Whereas, The Individual Education Plan (IEP) Team for astudent who is deaf or hard of hearing must consider opportunitiesfor direct communication with peers who are approximately the sameage and ability level and in the student’s language andcommunication modes; and

Whereas, The IEP Team must consider providing related servicesand program options that give the deaf or hard of hearing studentan appropriate and equal opportunity for communication access; and

Whereas, In considering a student’s specific communicationneeds, and especially the importance of clear communication, theIEP team must emphasize the acquisition of the language orcommunication mode chosen for or by the student, including sign,speech or another mode; and

Whereas, Language acquisition must be prioritized through: Using the student’s individual communication mode or language;providing the opportunity to interact with peers who have similarcognitive and language abilities; providing the opportunity forinteraction with deaf or hard of hearing adult models who use thesame or similar communication mode or language as the student;providing direct language access by teachers of the deaf and hardof hearing, interpreters and other specialists who are proficientin the student’s primary communication mode or language; andproviding accessible academic instruction, school services andextracurricular activities in the student’s communication mode orlanguage; and

Whereas, A student who is deaf or hard of hearing must haveaccess to professional personnel with whom he or she cancommunicate directly in his or her language and communicationmodes; and

Whereas, A student who is deaf or hard of hearing and his orher parents or guardians must be given the opportunity toparticipate fully in the educational planning, which includeshaving access to all relevant information; and

Whereas, A student who is deaf or hard of hearing must haveprograms in which he or she has direct and appropriate access to afull spectrum of educational and vocational training programs,including, but not limited to, recess, lunch and extracurricularsocial and athletic activities; and

Whereas, A student who is deaf or hard of hearing must beprovided appropriate assistive technology, and students, teachersand other school personnel must be trained in its use; and

Whereas, A student who is deaf or hard of hearing must beeducated in classrooms where sound levels meet the AcousticalSociety of America (ASA) guidelines for reducing room noise and thesignal-to-noise ratio through the use of materials such asacoustical tiles; and

Whereas, A student who is deaf or hard of hearing and useshearing aids or cochlear implants must have daily monitoring ofexternal components conducted by trained staff; and

Whereas, A student who is deaf or hard of hearing must haveopportunities for interaction with deaf and hard of hearing rolemodels and exposure to deaf culture; and

Whereas, To ensure a free and appropriate public education fora student who is deaf or hard of hearing, as required by theIndividuals with Disabilities Education Act (IDEA), the IEP teammust ensure that: All the educational options available to thestudent at the time his or her IEP is prepared are fully explainedto the parents or guardians and the student in the student’scommunication mode or language; and the student is not denied theopportunity for instruction or extra curricular activities in aparticular communication mode or language solely because the childhas some hearing, his or her parents or guardians are not fluent inhis or her communication mode, or the student has previousexperience with some other communication mode or language; and

Whereas, All teachers, interpreters and other school personnelwho work with students who are deaf or hard of hearing must beprovided opportunities to receive professional development in theirspecialized fields, which must include educational strategies,interpreting skills and technology; and

Whereas, Due to the unique communication needs of students whoare deaf or hard of hearing, consideration must be given to theprovision of services, programs or shared resources across countylines; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby recognizes the Deaf or Hard ofHearing Student’s Bill of Rights; and, be it

Further Resolved, That a copy of this resolution be sent tothe West Virginia Commission for the Deaf and Hard of Hearing andall other appropriate organizations.

And reports the same back with the recommendation that it beadopted.

Respectfully submitted,

Robert H. Plymale,

Chair.

At the request of Senator Plymale, unanimous consent beinggranted, the resolution (S. C. R. No. 96) contained in thepreceding report from the Committee on Education was taken up forimmediate consideration.

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

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

Senator Plymale, from the Committee on Education, submittedthe following report, which was received:

Your Committee on Education has had under consideration

Senate Concurrent Resolution No. 97 (originating in theCommittee on Education)--Requesting the Joint Committee onGovernment and Finance to conduct a study regarding the impact oftruancy on students, schools and society and strategies to addresstruancy and improve school attendance by truant students.

Whereas, Education is a fundamental constitutional right inWest Virginia; and

Whereas, Research shows that the factors contributing totruancy stem from the realms of home, family and community; school;and personal psychological characteristics; and

Whereas, Absenteeism is proven to be one of the highestpredictors of school failure and that the student will eventuallydrop out of school; and

Whereas, Each year nearly 7000 West Virginia students leaveschool prior to achieving a high school diploma; and

Whereas, Truancy is a risk factor for serious juveniledelinquency and adult crime; and

Whereas, Children who are truant are more likely to beinvolved with illegal drugs; and

Whereas, The maximum number of unexcused absences allowed byWest Virginia Code is five; and

Whereas, Truancy negatively affects the entire learningprocess; and

Whereas, The negative impact of truancy on society isextensive, and includes such outcomes as increased crime, lowstandards of living, low property values, lack of skilledworkforce, and cyclical and generational devaluing of educationattainment, to name only a few; and

Whereas, At least 75% of high school dropouts are eventuallyincarcerated; and

Whereas, At least 75% of all prison inmates in the state arehigh school dropouts; and

Whereas, More than 80% of prison inmates are functionallyilliterate; and

Whereas, It is estimated that the 2008 class of high schooldropouts will cost the state $1.7 billion in lost wages over theirlifetimes; and

Whereas, Each class of high school dropouts costs the state$55 million in health care costs over the students’ lifetimes; and

Whereas, Being present at the workplace is an integralcomponent of fulfilling the responsibilities of employment; and

Whereas, Employers often have strict attendance policies andboth reward employees who adhere to the policies and disciplinethose who do not; and

Whereas, Schools should prepare students for the demands ofthe adult world, such as the expectation of employers thatemployees faithfully and reliably attend work; and

Whereas, Magistrate and Circuit Courts in West Virginia haveinitiated various effective anti-truancy strategies and programs inrecent years; and

Whereas, Historically, interventions have begun in the middlegrades, which ignores the foundation of a student’s education; and

Whereas, The most effective strategies begin at the elementaryschool level, involve efforts from both schools and families,include meaningful incentives for good attendance and consequencesfor poor attendance, and involve participation from communitysources such as law enforcement, mental health workers, mentors,and social service providers; and

Whereas, The Legislature should explore effective truancyinterventions; and

Whereas, Interventions to explore should include, but not belimited to, implementation of policies that promote schoolattendance through rewards for good attendance and consequences forpoor attendance; promotion of attendance incentive programs; andmodification of available consequences and penalties for parentswhose children are truant; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is herebyrequested to conduct a study regarding the impact of truancy onstudents, schools and society and strategies to address truancy andimprove school attendance by truant students; and, be it

And reports the same back with the recommendation that it beadopted; but with the further recommendation that it first bereferred to the Committee on Rules.

Respectfully submitted,

Robert H. Plymale,

Chair.

On motion of Senator Plymale, the resolution (S. C. R. No. 97)contained in the foregoing report from the Committee on Educationwas referred to the Committee on Rules.

Senator Plymale, from the Committee on Education, submittedthe following report, which was received:

Your Committee on Education has had under consideration

Senate Concurrent Resolution No. 98 (originating in theCommittee on Education)--Requesting the Joint Committee onGovernment and Finance to conduct a study on the results andrecommendations of the Education Efficiency Audit of WestVirginia’s Primary and Secondary Education System (Public Works,2012) to determine which recommendations presented within may movethe state toward receiving the highest return on the educationaldollars spent while producing the best possible outcomes for itsstudents.

Whereas, The Education Efficiency Audit of West Virginia’sPrimary and Secondary Education System uses an array of techniquesto identify issues, research possible solutions to determine bestpractices and develop recommendations designed to identifyopportunities for savings and eliminate duplication of effort; and

Whereas, The same audit finds that West Virginia ranks eighthin the nation in education expenditures relative to income; and

Whereas, The U. S. Department of Commerce finds that WestVirginia ranks seventh nationally in salaries, exclusive of benefitpayments, relative to the State’s income levels; and

Whereas, Despite the funds expended, West Virginia studentsscore below the national average on twenty-one of the twenty-fourindicators of student performance as reported by the NationalAssessment of Educational Progress; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby requests the Joint Committee onGovernment and Finance to conduct a study on the results andrecommendations of the Education Efficiency Audit of WestVirginia’s Primary and Secondary Education System (Public Works,2012) to determine which recommendations presented within may movethe state toward receiving the highest return on the educationaldollars spent while producing the best possible outcomes for itsstudents; and, be it

And reports the same back with the recommendation that it beadopted; but with the further recommendation that it first bereferred to the Committee on Rules.

Respectfully submitted,

Robert H. Plymale,

Chair.

On motion of Senator Plymale, the resolution (S. C. R. No. 98)contained in the foregoing report from the Committee on Educationwas referred to the Committee on Rules.

Senator Snyder, from the Committee on Government Organization,submitted the following report, which was received:

Your Committee on Government Organization has had underconsideration

Senate Concurrent Resolution No. 99 (originating in theCommittee on Government Organization)--Requesting the JointCommittee on Government and Finance study the relationship betweenour district conservation supervisors and the local entities withwhich they interact to determine if the relationship is working orif the committee recommends a codified framework for thisinteraction.

Whereas, The mission of the West Virginia Conservation Agencyis to preserve West Virginia’s natural resources by working withpartners to promote soil and water conservation; and

Whereas, West Virginia’s Soil Conservation Committee wascreated in 1939, its functions and programs to conserve soil andretard erosion; and

Whereas, West Virginia currently has fourteen ConservationDistricts, each consisting of six counties; and

Whereas, In 2002, the Legislature changed the name of the SoilConservation Committee to State Conservation Committee to show thatthe committee’s responsibilities went beyond soil to all naturalresources such as air and water; and

Whereas, The State Conservation Committee serves as thegoverning body of the West Virginia Conservation Agency; and

Whereas, The West Virginia Conservation Agency has a WestVirginia Lime Incentive Program which provides up to a fiftypercent cost-share reimbursem*nt with eligible farmers for thepurchase of agricultural lime to improve their grasslands; and

Whereas, The West Virginia Conservation Agency has anAgriculture Enhancement Pilot Program, which is administeredthrough conservation districts, with the goal of increasing farmproductivity by conserving soil, making wise use of agriculturalresources and improving water quality in the state’s streams andrivers; and

Whereas, The Emergency Watershed Protection is only usedduring a State or Federal Emergency Declaration in response to asudden disaster, and is only used for the removal of blockagescausing a seventy-five percent obstruction to stream flow and notfor maintenance issues such as removing trash, raising banks, dikesor dredging; and

Whereas, The Stream Protection and Restoration Program is usedto cover nonemergency situations that fall outside of the EmergencyWatershed Protection Program, including blockage removal fromLegislative or Citizen Contact Reports, and planned projects usingNatural Stream Restoration designs; and

Whereas, The Landowner Stream Access Permit Program is apermit process designed to provide landowners the opportunity tocomplete certain types of stream projects with technical assistancefrom the West Virginia Conservation Agency; and

Whereas, The West Virginia Conservation Agency is responsiblefor the inspection and operation and maintenance of one hundredseventy watershed dam’s and twenty-two channels throughout WestVirginia, and is also responsible for the rehabilitation of thestate’s aging watershed dams; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is herebyrequested to study the relationship between our districtconservation supervisors and the local entities with which theyinteract to determine if the relationship is working or if thecommittee recommends a codified framework for this interaction;and, be it

And reports the same back with the recommendation that it beadopted; but with the further recommendation that it first bereferred to the Committee on Rules.

Respectfully submitted,

Herb Snyder,

Chair.

On motion of Senator Snyder, the resolution (S. C. R. No. 99)contained in the foregoing report from the Committee on GovernmentOrganization was referred to the Committee on Rules.

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

Your Committee on Finance has had under consideration

Senate Concurrent Resolution No. 100 (originating in theCommittee on Finance)--Requesting the Joint Committee on Governmentand Finance to study copayments for services by a licensedtherapist.

Whereas, The Legislature is interested in the effects ofcopayments on the ability of individuals to access therapyservices; and

Whereas, The Legislature is interested in the effect ofcopayments on costs to health care payers for therapy services; and

Whereas, The Legislature believes it is prudent to study theissue before passing any state law which could negatively affectinsurance consumers and limit consumer choice; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby requests the Joint Committee onGovernment and Finance to study copayments for services by alicensed therapist; and, be it

And reports the same back with the recommendation that it beadopted; but with the further recommendation that it first bereferred to the Committee on Rules.

Respectfully submitted,

Roman W. Prezioso, Jr.,

Chair.

On motion of Senator Prezioso, the resolution (S. C. R. No.100) contained in the foregoing report from the Committee onFinance was referred to the Committee on Rules.

The Senate proceeded to the seventh order of business.

House Concurrent Resolution No. 59, Expressing support forimprovement in the collection, processing and consumption ofrecyclable materials throughout the State.

On unfinished business, coming up in regular order, wasreported by the Clerk.

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

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

House Concurrent Resolution No. 74, Requesting the statecongressional delegation to ask the US Department of State to makecertain demands on the government of the United Arab Emirates.

On unfinished business, coming up in regular order, wasreported by the Clerk.

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

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

House Concurrent Resolution No. 77, Declaring that the monthof September be proclaimed as Take Pride in America Month beginningwith September, 2012.

On unfinished business, coming up in regular order, wasreported by the Clerk.

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

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

The Senate proceeded to the eighth order of business.

Eng. Com. Sub. for House Bill No. 2740, Making covenants thatrestrict the installation or use of solar energy systemsunenforceable.

On third reading, coming up in regular order, was reported bythe Clerk.

At the request of Senator Palumbo, unanimous consent wasgranted to offer an amendment to the bill on third reading.

Thereupon, on motion of Senator Palumbo, the followingamendment to the bill was reported by the Clerk:

On page two, section nineteen, line fourteen, after the word“system.” by inserting the following: The provisions of thissubsection (a) apply only to deeds, contracts, securityinstruments, or other instruments affecting the transfer or sale ofany interest in real property, or to any governing document of ahousing development or association, recorded or executed after theeffective date of this section.

Pending discussion,

Thereafter, at the request of Senator Palumbo, unanimousconsent being granted, the bill was laid over one day, retainingits place on the calendar, with the right to amend on third readingremaining in effect and with Senator Palumbo's amendment to thebill pending.

Eng. Com. Sub. for House Bill No. 4006, Relating to elevatorworkers' licensure exemptions.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4006) passed.

The following amendment to the title of the bill, from theCommittee on Government Organization, was reported by the Clerk andadopted:

Eng. Com. Sub. for House Bill No. 4006--A Bill to amend andreenact §21-3C-1, §21-3C-10a and §21-3C-11 of the Code of WestVirginia, 1931, as amended; and to amend said code by addingthereto a new section, designated §21-3C-10b, all relating toelevators; defining certain terms; requiring licensure; providinglicensure requirements for elevator mechanics, accessibilitytechnicians and limited technicians; providing requirements toobtain a limited use/limited application endorsem*nt; providingrequirements for issuance and renewal of licenses; modifying rule-making authority of Commissioner of Labor; and removing reciprocityprovisions.

Senator Unger moved that the bill take effect from passage.

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

The nays were: None.

Absent: K. Facemyer--1.

So, two thirds of all the members elected to the Senate havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4006) takes effect from passage.

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

Eng. House Bill No. 4007, Relating to unemployment benefitsfor certain spouses of military personnel.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng. H.B. No. 4007) passed with its title.

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

Eng. Com. Sub. for House Bill No. 4015, Creating the HerbertHenderson Office of Minority Affairs.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4015) passed.

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

Eng. Com. Sub. for House Bill No. 4015--A Bill to amend theCode of West Virginia, 1931, as amended, by adding thereto a newarticle, designated §5-26-1 and §5-26-2, all relating to thecreation of the Herbert Henderson Office of Minority Affairs withinthe Governor’s office; establishing the powers and duties of theoffice; providing for an executive director; requiring annualreports to the Governor and the Joint Committee on Government andFinance; and creating a Minority Affairs Fund.

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

Eng. Com. Sub. for House Bill No. 4053, Relating to abduction,kidnapping and human trafficking.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4053) passed.

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

Eng. Com. Sub. for House Bill No. 4053--A Bill to amend andreenact §30-29-3 the Code of West Virginia, 1931, as amended; andto amend said code by adding a new section, designated §61-2-17,all relating to human trafficking; authorizing the Governor'sCommittee on Crime, Delinquency and Correction to establishstandards governing training to effectively investigate humantrafficking offenses and procedures for implementation of a coursein investigation of human trafficking offenses; creating the newcriminal offense of human trafficking; specifying the penalties forthe new human trafficking offense; and including human traffickingas a qualifying offense in the prohibition against operating acriminal enterprise.

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

Eng. Com. Sub. for House Bill No. 4070, Changing the basis forpaying the county salary supplement equivalent pay rate fordivision of rehabilitation teachers.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4070) passed with its title.

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

Eng. Com. Sub. for House Bill No. 4077, Relating to activitiesthat may be performed by a dental hygienist without a prior exam bya dentist.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4077) passed.

The following amendment to the title of the bill, from theCommittee on Health and Human Resources, was reported by the Clerkand adopted:

Eng. Com. Sub. for House Bill No. 4077--A Bill to amend §30-4-17 of the code of West Virginia, 1931, as amended, relating toactivities that may be performed by a dental hygienist without aprior exam by a dentist; requiring a Public Health Practice permit;providing for the sealants to be placed pursuant to a collaborativeagreement with a supervising dentist; and requiring a referral fora dental examination within six months.

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

Eng. Com. Sub. for House Bill No. 4101, Authorizingteacher-in-residence programs for certain prospective teachers inlieu of student teaching.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4101) passed.

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

Eng. Com. Sub. for House Bill No. 4101--A Bill to amend andreenact §18A-3-1 and 18A-3-2a of the code of West Virginia, 1931,as amended, all relating to teacher preparation and certification;authorizing teacher-in-residence programs for certain prospectiveteachers in lieu of student teaching; defining teacher-in-residenceprograms and providing minimum requirements; providing use ofcertain funds for program support and student stipend; specifyingformula for calculating stipend; creating teacher-in-residencepermit and specifying conditions; authorizing counties withcomprehensive induction programs to use consistent structure forsupervision and training of student teachers; conforming sectionsto other provisions of law; removing duplicative and obsoletelanguage; and making technical corrections throughout.

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

Eng. Com. Sub. for House Bill No. 4139, Authorizingmiscellaneous agencies and boards to promulgate legislative rules.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4139) passed with its title.

Senator Unger moved that the bill take effect from passage.

The nays were: None.

Absent: K. Facemyer--1.

So, two thirds of all the members elected to the Senate havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4139) takes effect from passage.

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

Eng. Com. Sub. for House Bill No. 4142, Authorizing theDepartment of Administration to promulgate legislative rules.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4142) passed with its title.

Senator Unger moved that the bill take effect from passage.

The nays were: None.

Absent: K. Facemyer--1.

So, two thirds of all the members elected to the Senate havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4142) takes effect from passage.

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

Eng. Com. Sub. for House Bill No. 4256, Relating to captiveinsurance.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4256) passed with its title.

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

Eng. Com. Sub. for House Bill No. 4257, Providing late voterregistration opportunities to individuals covered by the Uniformedand Overseas Citizens Act of 1986.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4257) passed.

At the request of Senator Palumbo, as chair of the Committeeon the Judiciary, and by unanimous consent, the unreportedJudiciary committee amendment to the title of the bill waswithdrawn.

On motion of Senator Palumbo, the following amendment to thetitle of the bill was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4257--A Bill to amend theCode of West Virginia, 1931, as amended, by adding thereto a newsection, designated §3-2-6a, relating to permitting voterregistration in person up to, but not including, the day of theelection for any member of a uniformed service of the UnitedStates, as defined in 42 U. S. C. §1973ff-6, any member of theMerchant Marine of the United States, any person who residesoutside the United States by virtue of his or her employment insupport of national security functions or purpose; any spouse ordependent residing with a person who meets the aforesaid criteria;providing for applicability of section; providing that any personwho registers pursuant to this section shall vote a provisionalballot; and requiring the Secretary of State to prescribeprocedures to implement the section.

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

Eng. House Bill No. 4274, Expanding the authority of theCommissioner of Banking over regulated consumer lender licensees,and providing a penalty for violations.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng. H.B. No. 4274) passed with its title.

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

Eng. Com. Sub. for House Bill No. 4279, Permittingmunicipalities to stagger the terms of elected officers.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4279) passed.

The following amendment to the title of the bill, from theCommittee on Government Organization, was reported by the Clerk andadopted:

Eng. Com. Sub. for House Bill No. 4279--A Bill to amend andreenact §8-5-5 of the Code of West Virginia, 1931, as amended,relating to elected municipal officers; and authorizingmunicipalities to stagger and/or change the terms of electedmunicipal officers by ordinance and approval of the voters.

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

Eng. Com. Sub. for House Bill No. 4281, Increasing thesupplemental pay of members of the West Virginia State Police.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4281) passed with its title.

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

The nays were: None.

Absent: K. Facemyer--1.

So, two thirds of all the members elected to the Senate havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4281) takes effect July 1, 2012.

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

Eng. House Bill No. 4315, Permitting a new class IV town orvillage to select a form of government.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng. H.B. No. 4315) passed with its title.

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

Eng. Com. Sub. for House Bill No. 4327, Requiring pulseoximetry testing for newborns.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4327) passed.

The following amendment to the title of the bill, from theCommittee on Health and Human Resources, was reported by the Clerkand adopted:

Eng. Com. Sub. for House Bill No. 4327--A Bill to amend theCode of West Virginia, 1931, as amended, by adding thereto a newarticle, designated §16-44-1 and §16-44-2, all relating torequiring pulse oximetry testing for newborns; setting forthlegislative findings; authorizing the Commissioner of the Bureau ofPublic Health to require testing; providing timing requirements fortesting; and requiring the commissioner to adopt procedural andlegislative rules.

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

Eng. Com. Sub. for House Bill No. 4390, Uniform Power ofAttorney Act.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4390) passed.

At the request of Senator Klempa, as chair of the Committee onInterstate Cooperation, and by unanimous consent, the unreportedInterstate Cooperation committee amendment to the title of the billwas withdrawn.

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

Eng. Com. Sub. for House Bill No. 4390--A Bill to repeal§39-4-1, §39-4-2, §39-4-3, §39-4-4, §39-4-5, §39-4-6 and §39-4-7 ofthe Code of West Virginia, 1931, as amended; to amend said code byadding thereto a new chapter, designated §39B-1-101, §39B-1-102,§39B-1-103, §39B-1-104, §39B-1-105, §39B-1-106, §39B-1-107,§39B-1-108, §39B-1-109, §39B-1-110, §39B-1-111, §39B-1-112,§39B-1-113, §39B-1-114, §39B-1-115, §39B-1-116, §39B-1-117,§39B-1-118, §39B-1-119, §39B-1-120, §39B-1-121, §39B-1-122,§39B-1-123, §39B-2-101, §39B-2-102, §39B-2-103, §39B-2-104,§39B-2-105, §39B-2-106, §39B-2-107, §39B-2-108, §39B-2-109,§39B-2-110, §39B-2-111, §39B-2-112, §39B-2-113, §39B-2-114,§39B-2-115, §39B-2-116, §39B-2-117, §39B-3-101 §39B-3-102,§39B-4-101, §39B-4-102, and §39B-4-103; and to amend and reenact§44A-3-3 of said code, all relating to repealing the UniformDurable Power of Attorney Act and adopting the Uniform Power ofAttorney Act; declaring the state law of the state where the powerof attorney is executed to be controlling; providing a short title;providing definitions; setting forth the applicability of the act;providing that the power of attorney is durable; requiring thepower of attorney to be acknowledged before a notary public orother individual authorized by law to take acknowledgments;providing for execution, validity and meaning and effect of powerof attorney; nominating conservator or guardian and relation ofa*gent to court-appointed fiduciary; providing when power ofattorney effective; terminating power of attorney or agent’sauthority; providing for coagents and successor agents and theirliability; reimbursing and compensating agent, exception; providingfor agent’s acceptance of appointment and agent’s duties;exonerating agent in power of attorney, exceptions; providingcertain persons judicial relief to construe a power of attorney orreview an agent’s conduct; providing for agent’s liability incertain monetary amounts; providing for resignation of agent;accepting and relying upon acknowledged power of attorney and forwhat a request may be made before accepting the power of attorney;providing for liability for refusing to accept an acknowledgedstatutory form power of attorney; declaring that principles of lawand equity supplement the act; providing that laws applicable tofinancial institutions and entities supercede this act; declaringremedies under the act are not exclusive; granting specific andgeneral authority under the power of attorney; providing forgranting general authority of the agent under a power of attorneywhich incorporates by reference a subject matter involving realproperty, tangible personal property, stocks and bonds, commoditiesand options, financial institutions, operation of an entity orbusiness, insurance and annuities, estates, trusts and otherbeneficial interests, claims and litigation, personal and familymaintenance, benefits from governmental programs or civil ormilitary service, retirement plans, taxes and gifts; providing astatutory form power of attorney form; providing miscellaneousprovisions relating to uniformity of application and constructionand relating to electronic signatures in the Global and NationalCommerce Act; providing application of act on existing powers ofattorney; and removing provision in the West Virginia Guardianshipand Conservatorship Act that a conservator may not revoke or amenda durable power of attorney without approval of the court to avoida conflict.

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

Eng. Com. Sub. for House Bill No. 4422, Relating to craneoperator certification.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4422) passed.

The following amendment to the title of the bill, from theCommittee on Government Organization, was reported by the Clerk andadopted:

Eng. Com. Sub. for House Bill No. 4422-A Bill to amend andreenact §21-3D-1, §21-3D-2, §21-3D-3, §21-3D-4 and §21-3D-9 of theCode of West Virginia, 1931, as amended, all relating to craneoperator certification; redefining a crane for the purposes of theact; clarifying those persons who are exempted from certification;expanding the type of equipment for which certification is requiredto operate; requiring adherence to standards established by theOccupational Safety and Health Administration of the United StatesDepartment of Labor; clarifying the minimum requirements forcertification; authorizing the Commissioner of Labor to issuenotices to cease and desist unlawful practices; authorizing theCommissioner of Labor to apply to the circuit court for injunctiverelief; limiting reciprocity provisions; deleting obsoleteprovisions; and requiring certain crane operators to hold certainclasses of certification as of November 10, 2014.

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

Eng. Com. Sub. for House Bill No. 4424, Relating to modifiedmental hygiene procedures.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4424) passed.

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

Eng. Com. Sub. for House Bill No. 4424--A Bill to amend andreenact §27-5-11 of the Code of West Virginia, 1931, as amended,relating to modified mental hygiene procedures; extending thetermination date of the modified mental hygiene procedures pilotproject; including addiction as a basis for treatment under thepilot project; authorizing additional programs throughout thestate; continuing the pilot project through July 1, 2014; andrequiring the secretary of the Department of Health and HumanResources to report to the legislature regarding the efficacy ofthe pilot program on or before the first day of the 2013 and 2014regular sessions of the Legislature.

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

Eng. Com. Sub. for House Bill No. 4438, Provider SponsoredNetwork Act.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4438) passed.

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

Eng. Com. Sub. for House Bill No. 4438--A Bill to amend theCode of West Virginia, 1931, as amended, by adding thereto a newarticle, designated §16-2L-1, §16-2L-2, §16-2L-3, §16-2L-4, §16-2L-5, §16-2L-6 and §16-2L-7; and to amend said code by adding theretoa new article, designated §33-25G-1, §33-25G-2, §33-25G-3, §33-25G-4 and §33-25G-5, all relating to provider sponsored networks;stating the purpose; making legislative findings; defining terms;authorizing the Secretary of the Department of Health and HumanResources to contract with provider sponsored networks to provideservices to Medicaid beneficiaries; assigning certain medicaidbeneficiaries to provider sponsored networks; guaranteeing Medicaidbeneficiaries’ freedom to choose a managed care plan; providing anexemption from anti-trust laws; requiring reports to theLegislature; providing for shared savings with the state;authorizing the Insurance Commissioner to license providersponsored networks; subjecting provider sponsored networksgenerally to the laws governing HMOs; providing for participationof health care providers in a provider sponsored network;permitting lower or different minimum capital and surplus amounts;and providing rule-making authority, including emergency rules.

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

Eng. Com. Sub. for House Bill No. 4504, Relating todevelopment and operation of a nursing home on the grounds of anonprofit community health care organization.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4504) passed with its title.

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

Eng. House Bill No. 4521, Permitting the restructuring ofchild support payments of an inmate who is released under certaincirc*mstances.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng. H.B. No. 4521) passed.

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

Eng. House Bill No. 4521--A Bill to amend the Code of WestVirginia, 1931, as amended, by adding thereto a new section,designated §48-13-703, relating to permitting the restructuring ofchild support payments of an inmate who is released from thecustody of the Division of Corrections or United States Bureau ofPrisons under certain circ*mstances; providing that one judgewithin the circuit may assume jurisdiction over all child supportobligations of the former inmate; and providing a minimum amount ofchild support which is to be paid each month in each case.

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

Eng. House Bill No. 4522, Providing additional contempt powersfor family court judges.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng. H.B. No. 4522) passed.

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

Eng. Com. Sub. for House Bill No. 4522--A Bill to amend andreenact §51-2A-9 of the Code of West Virginia, 1931, as amended,relating to providing additional contempt powers for family courtjudges in civil contempt cases; and providing for alternatives toincarceration until the person has purged himself or herself of thecontempt.

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

Eng. House Bill No. 4549, Imposing a monetary penalty onunemployment compensation recipients for obtaining benefits throughthe use of fraudulent statements.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng. H.B. No. 4549) passed.

On motion of Senator Yost, the following amendment to thetitle of the bill was reported by the Clerk and adopted:

Eng. House Bill No. 4549--A Bill to amend and reenact §21A-10-7 of the Code of West Virginia, 1931, as amended, relating toimposing a monetary penalty on unemployment compensation recipientsfor obtaining benefits through the use of fraudulent statements oractions; specifying disposition of the penalties collected; andproviding that penalty amounts may not be used to offset futurebenefit payments to recipients.

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

The nays were: None.

Absent: K. Facemyer--1.

So, two thirds of all the members elected to the Senate havingvoted in the affirmative, the President declared the bill (Eng. H.B. No. 4549) takes effect July 1, 2012.

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

Eng. Com. Sub. for House Bill No. 4601, Authorizing the WestVirginia National Guard to participate in a federal assetforfeiture or sharing program.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4601) passed with its title.

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

Eng. House Bill No. 4626, Increasing state police principalsupervisors to nineteen.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

On the passage of the bill, the yeas were: Barnes, Beach,Boley, Edgell, Foster, Green, Jenkins, Kirkendoll, McCabe, Minard,Nohe, Palumbo, Plymale, Prezioso, Stollings, Sypolt, Unger, Wellsand Kessler (Mr. President)--19.

The nays were: Browning, Chafin, D. Facemire, Fanning, Hall,Helmick, Klempa, Laird, Miller, Snyder, Tucker, Williams, Wills andYost--14.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng. H.B. No. 4626) passed with its title.

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

Eng. House Bill No. 4655, Relating to school service personnelcertification.

On third reading, coming up in regular order, was read a thirdtime and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng. H.B. No. 4655) passed with its title.

Senator Unger moved that the bill take effect from passage.

The nays were: None.

Absent: K. Facemyer--1.

So, two thirds of all the members elected to the Senate havingvoted in the affirmative, the President declared the bill (Eng. H.B. No. 4655) takes effect from passage.

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

The Senate proceeded to the ninth order of business.

Eng. Com. Sub. for House Bill No. 2278, Authorizing the use ofadditional medium for use in archiving government records.

On second reading, coming up in regular order, was read asecond time.

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

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

ARTICLE 8. PUBLIC RECORDS MANAGEMENT AND PRESERVATION ACT.

§5A-8-20. Alternate storage of state records.

(a) Findings and purpose. -- The Legislature finds thatcontinuous advances in technology have resulted and will continueto result in the development of alternate formats for thenonerasable storage of state records, and that the use of suchalternative storage formats, where deemed advisable, promote theefficient and economical administration of government and providea means for the preservation of valuable records which that aresubject to decay or destruction. It is the purpose of theLegislature to authorize the storage of state records in such thosealternate formats, as may be determined by the various branches ofthe government of this state, that will reasonably ensure that theoriginals of such those records are copied into such alternativeformats in a manner in which the image thereof may of the originalrecords is not be erased or altered, and from which true andaccurate reproductions of the original state records may beretrieved.

(b) Approved format. -- (1) In addition to those formats,processes and systems described in section ten of this article,sections seven-a and seven-c, article one, chapter fifty-seven ofthis code, and section twelve, article five of said chapter fifty-seven, which are otherwise authorized for the reproduction of staterecords, a preservation duplicate of a state record may be storedin any approved format where the image of the original state recordis preserved in a form in which the image thereof is incapable oferasure or alteration, and from which a reproduction of the storedstate record may be retrieved which truly and accurately depictsthe image of the original state record.

(2) As a substitute for using medium that is incapable oferasure or alteration, a preservation duplicate of a state recordmay be stored on other electronic storage medium or other mediumcapable of storing digitized documents if:

(A) The medium is stored to maximize its life by minimizingexposure to environmental contaminants;

(B) At least two copies of the preservation duplicate are madeand one copy is stored in an off-site location; and

(i) Modifications in the archiving process are made astechnology changes so that the preservation duplicates are readilyaccessible, which may include migrating the preservation duplicatesto different medium or different file formats; and

(ii) The medium is periodically examined to determine if thepreservation duplicates remain readable and intact.

(c) Executive agency records. -- (1) Except for those formats,processes and systems used for the storage of state records on theeffective date of this section, no The alternate format formats forthe storage of state records described in this section is areauthorized for the storage of the state records of any agency ofthis state. unless the particular format has been approved by thestate records administrator pursuant to legislative rulepromulgated in accordance with the provisions of chapter twenty-nine-a of this code. No provision of this section shall beconstrued to prohibit the state records administrator fromprohibiting the use of any format, process or system used for thestorage of executive state records upon his or her determinationthat the same is not reasonably adequate to preserve the staterecords from destruction, alteration or decay. The state recordsadministrator shall establish a procedure for executive agencies tofollow implementing the provisions of subsection (b) of thissection by July 1, 2012. The procedure shall include, at aminimum, the identification of examples of medium and accompanyingprocedures to be followed for executive agencies when makingpreservation duplicates of state records on medium readilyavailable, other than microfilm or microfiche.

(2) Upon creation of a preservation duplicate which stores anoriginal executive state record in an approved format in which theimage thereof is incapable of erasure or alteration, and from whicha reproduction of the stored state record may be retrieved whichtruly and accurately depicts the image of the original staterecord, the state records administrator may destroy or otherwisedispose of the original in accordance with the provisions ofsection seventeen of this article for the destruction of records.

(d) Judicial records. -- (1) Except for those formats,processes and systems used for the storage of state records on theeffective date of this section, no alternate format for the storageof state records described in this section is authorized for thestorage of the state records of any court of this state unless theparticular format has been approved by the Supreme Court of Appealsby rule. No provision of this This section shall be construed todoes not prohibit the Supreme Court of Appeals from prohibiting theuse of any format, process or system used for the storage ofjudicial state records upon its determination that the same is notreasonably adequate to preserve the state records from destruction,alteration or decay.

(2) Upon creation of a preservation duplicate which stores anoriginal judicial state record in an approved format in which theimage thereof is incapable of erasure or alteration, and from whicha reproduction of the stored state record may be retrieved whichtruly and accurately depicts the image of the original staterecord, the court or the clerk thereof creating the same may,consistent with rules of the Supreme Court of Appeals, destroy orotherwise dispose of the original in accordance with the provisionsof section seven, article one, chapter fifty-seven of this code forthe destruction of records.

(e) Legislative records. -- (1) Except for those formats,processes and systems used for the storage of state records on theeffective date of this section, no alternate format for the storageof state records described in this section is authorized for theStorage of the state records of the Legislature unless theparticular format has been approved in a writing jointly by theSpeaker of the House of Delegates and the President of the Senateto the clerks of their respective houses. No provision of thissection shall be construed to prohibit the presiding officers ofthe houses of the Legislature from prohibiting the use of anyformat, process or system used for the storage of legislative staterecords upon their determination that the same is not reasonablyadequate to preserve the state records from destruction, alterationor decay.

(2) Upon creation of a preservation duplicate which stores anoriginal legislative state record in an approved format in whichthe image thereof is incapable of erasure or alteration, and fromwhich a reproduction of the stored state record may be retrievedwhich truly and accurately depicts the image of the original staterecord, the clerks of the respective houses of the Legislature maydestroy or otherwise dispose of the original. However, priorthereto, the clerks shall give written notice of their intention todo so to the director of the section of archives and history of theDivision of Culture and History. Upon the written request of thedirector, given to the clerks within ten days of receipt of saidnotice, the clerks shall retain the original record for a period ofthirty days. In the event the director fails to retrieve theoriginal document from the clerks within the thirty day period, theclerks may destroy or otherwise dispose of the original withoutfurther notice to the director. In accordance with all applicableprovisions of the West Virginia Constitution, the procedures forthe storage and destruction of legislative records shall bedetermined by each house, or by a joint rule.

(f) Upon request and payment of a reasonable cost, one copy ofany state record archived or preserved pursuant to the provisionsof this article shall be provided to any county historical society.

The bill (Eng. Com. Sub. for H. B. No. 2278), as amended, wasthen ordered to third reading.

On motion of Senator Unger, the constitutional rule requiringa bill to be read on three separate days was suspended by a vote offour fifths of the members present, taken by yeas and nays.

On suspending the constitutional rule, the yeas were: Barnes,Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Fanning,Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird,McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost andKessler (Mr. President)--33.

The nays were: None.

Absent: K. Facemyer--1.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.2278) was then read a third time and put upon its passage.

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

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 2278) passed.

The following amendment to the title of the bill, from theCommittee on Government Organization, was reported by the Clerk andadopted:

Eng. Com. Sub. for House Bill No. 2278--A Bill to amend andreenact §5A-8-20 of the Code of West Virginia, 1931, as amended,relating to the creation of preservation duplicates of staterecords and destruction of the original records; authorizing theuse of additional medium for use in archiving the records;authorizing state records administrator to establish proceduresconcerning preservation duplicates stored on additional medium;providing Legislature may establish procedure for storage anddestruction of records; and authorizing county historical societiesto obtain a copy of an archived state record.

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

Eng. Com. Sub. for House Bill No. 3174, Relating to liquor andbeer sampling events.

On second reading, coming up in regular order, was read asecond time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4012, Removing theCommissioner of the Bureau for Public Health from certain boards.

On second reading, coming up in regular order, was read asecond time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4028, Authorizing thetemporary suspension of certification of emergency medical servicepersonnel or licensure of emergency medical service agencieswithout a hearing or prior notice if there is probable cause.

On second reading, coming up in regular order, was read asecond time.

At the request of Senator Palumbo, as chair of the Committeeon the Judiciary, and by unanimous consent, the unreportedJudiciary committee amendment to the bill was withdrawn.

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

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

ARTICLE 4C. EMERGENCY MEDICAL SERVICES ACT.

§16-4C-6. Powers and duties of commissioner.

The commissioner has the following powers and duties:

(a) To propose rules for legislative approval in accordancewith the provisions of article three, chapter twenty-nine-a of thiscode: Provided, That the rules have been submitted at least thirtydays in advance for review by the Emergency Medical ServicesAdvisory Council, who may act only in the presence of a quorum. The rules may include:

(1) Standards and requirements for certification andrecertification of emergency medical service personnel, including,but not limited to:

(A) Age, training, testing and continuing education;

(B) Procedures for certification and recertification, and fordenying, suspending, revoking, reinstating and limiting acertification or recertification;

(D) Standards of conduct; and

(E) Causes for disciplinary action and sanctions which may beimposed.

(2) Standards and requirements for licensure and licensurerenewals of emergency medical service agencies, including:

(A) Operational standards, levels of service, personnelqualifications and training, communications, public access, recordsmanagement, reporting requirements, medical direction, qualityassurance and review, and other requirements necessary for safe andefficient operation;

(B) Inspection standards and establishment of improvementperiods to ensure maintenance of the standards;

(D) Procedures for denying, suspending, revoking, reinstatingor limiting an agency licensure;

(E) Causes for disciplinary action against agencies; and

(F) Administrative penalties, fines and other disciplinarysanctions which may be imposed on agencies;

(3) Standards and requirements for emergency medical servicevehicles, including classifications and specifications;

(4) Standards and requirements for training institutions,including approval or accreditation of sponsors of continuingeducation, course curricula and personnel;

(5) Standards and requirements for a State Medical DirectionSystem, including qualifications for a state emergency medicalservices medical director and regional medical directors, theestablishment of a State Medical Policy and Care Committee and thedesignation of regional medical command centers;

(6) Provision of services by emergency medical servicespersonnel in hospital emergency rooms; and

(7) Authorization to temporarily suspend the certification ofan individual emergency medical service provider prior to a hearingor notice if the commissioner finds there is probable cause thatthe conduct or continued service or practice of any individualcertificate holder has or may create a danger to public health orsafety: Provided, That the commissioner may rely on informationreceived from a physician that serves as a medical director infinding that probable cause exists to temporarily suspend thecertification; and

(7) (8) Any other rules necessary to carry out the provisionsof this article.

(b) To apply for, receive and expend advances, grants,contributions and other forms of assistance from the state orfederal government or from any private or public agencies orfoundations to carry out the provisions of this article.

(c) To design, develop and review a Statewide EmergencyMedical Services Implementation Plan. The plan shall recommend aidand assistance and all other acts necessary to carry out thepurposes of this article:

(1) To encourage local participation by area, county andcommunity officials and regional emergency medical services boardsof directors; and

(2) To develop a system for monitoring and evaluatingemergency medical services programs throughout the state.

(d) To provide professional and technical assistance and tomake information available to regional emergency medical servicesboards of directors and other potential applicants or programsponsors of emergency medical services for purposes of developingand maintaining a statewide system of services.

(e) To assist local government agencies, regional emergencymedical services boards of directors and other public or privateentities in obtaining federal, state or other available funds andservices.

(f) To cooperate and work with federal, state and localgovernmental agencies, private organizations and other entities asmay be necessary to carry out the purposes of this article.

(g) To acquire in the name of the state by grant, purchase,gift, devise or any other methods appropriate real and personalproperty as may be reasonable and necessary to carry out thepurposes of this article.

(h) To make grants and allocations of funds and property soacquired or which may have been appropriated to the agency to otheragencies of state and local government as may be appropriate tocarry out the purposes of this article.

(i) To expend and distribute by grant or bailment funds andproperty to all state and local agencies for the purpose ofperforming the duties and responsibilities of the agency all fundswhich it may have so acquired or which may have been appropriatedby the Legislature of this state.

(j) To develop a program to inform the public concerningemergency medical services.

(k) To review and disseminate information regarding federalgrant assistance relating to emergency medical services.

(l) To prepare and submit to the Governor and Legislaturerecommendations for legislation in the area of emergency medicalservices.

(m) To review, make recommendations for and assist in allprojects and programs that provide for emergency medical serviceswhether or not the projects or programs are funded through theOffice of Emergency Medical Services. A review and approval shallbe required for all emergency medical services projects, programsor services for which application is made to receive state orfederal funds for their operation after the effective date of thisact; and

(n) To take all necessary and appropriate action to encourageand foster the cooperation of all emergency medical serviceproviders and facilities within this state.

§16-4C-9. Complaints; investigations; due process procedure;grounds for disciplinary action.

(a) The commissioner may at any time upon his or her ownmotion, and shall, upon the written complaint of any person, causean investigation to be conducted to determine whether grounds existfor disciplinary action under this article or legislative rulespromulgated pursuant to this article.

(b) An investigator or other person who, under the directionof the commissioner or the director, gathers or reports informationin good faith to the commissioner or the director, is immune fromcivil liability.

(c) After reviewing any information obtained through aninvestigation, the commissioner or director shall determine ifprobable cause exists that the licensee or certificate holder hasviolated any provision of this article or rules promulgatedpursuant to this article.

(d) Upon a finding that probable cause exists that thelicensee or certificate holder has violated any provision of thisarticle or rules promulgated pursuant to this article, thecommissioner or director shall provide a copy of the complaint andnotice of hearing to the licensee or certificate holder. Upon afinding of probable cause that the conduct or continued service orpractice of any individual certificate holder may create a dangerto public health or safety, the commissioner may temporarilysuspend the certification prior to a hearing or notice: Provided,That the commissioner may rely on information received from aphysician that serves as a medical director in finding thatprobable cause exists to temporarily suspend the certification:Provided, however, That the commissioner shall simultaneouslyinstitute proceedings for a hearing in accordance with section tenof this article.

(e) The commissioner or the director may enter into a consentdecree or hold a hearing for the suspension or revocation of thelicense or certification or the imposition of sanctions against thelicensee or certificate holder.

(f) The commissioner or the director issue subpoenas andsubpoenas duces tecum to obtain testimony and documents to aid inthe investigation of allegations against any person or agencyregulated by the article.

(g) The commissioner or the director may sign a consent decreeor other legal document related to the complaint.

(h) The commissioner shall suspend or revoke any certificate,temporary certificate or license when he or she finds the holderhas:

(1) Obtained a certificate, temporary certificate or licenseby means of fraud or deceit; or

(2) Been grossly incompetent, and/or grossly negligent asdefined by the commissioner in accordance with rules or byprevailing standards of emergency medical services care; or

(3) Failed or refused to comply with the provisions of thisarticle or any legislative rule promulgated by the commissioner orany order or final decision of the commissioner; or

(4) Engaged in any act during the course of duty which hasendangered or is likely to endanger the health, welfare or safetyof the public.

(i) The commissioner or the director may, after notice andopportunity for hearing, deny or refuse to renew, suspend or revokethe license or certification of, impose probationary conditionsupon or take disciplinary action against, any licensee orcertificate holder for any violation of this article or any rulepromulgated pursuant to this article, once a violation has beenproven by a preponderance of the evidence.

(j) Disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Administrative penalties and fines;

(4) Mandatory attendance at continuing education seminars orother training;

(5) Practicing under supervision or other restriction;

(6) Requiring the licensee or holder of a certificate toreport to the commissioner or director for periodic interviews fora specified period of time;

(7) Other disciplinary action considered by the commissioneror director to be necessary to protect the public, includingadvising other parties whose legitimate interests may be at risk;or

(8) Other sanctions as set forth by legislative rulepromulgated pursuant to this article.

(k) The commissioner shall suspend or revoke any certificate,temporary certificate or license if he or she finds the existenceof any grounds which would justify the denial of an application forthe certificate, temporary certificate or license if applicationwere then being made for it.

The bill (Eng. Com. Sub. for H. B. No. 4028), as amended, wasthen ordered to third reading.

On motion of Senator Unger, the constitutional rule requiringa bill to be read on three separate days was suspended by a vote offour fifths of the members present, taken by yeas and nays.

The nays were: None.

Absent: K. Facemyer--1.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.4028) was then read a third time and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4028) passed.

On motion of Senator Snyder, the following amendment to thetitle of the bill was reported by the Clerk and adopted:

Eng. Com. Sub. for House Bill No. 4028--A Bill to amend andreenact §16-4C-6 and §16-4C-9 of the Code of West Virginia, 1931,as amended, all relating to emergency medical services; authorizingthe commissioner of the Bureau of Public Health to promulgate rulesrelating to the temporary suspension of a certification of anindividual emergency medical service provider; providing that thecommissioner may temporarily suspend the certification of anindividual emergency medical service provider in certaincirc*mstances prior to a hearing or notice; permitting thecommissioner to rely on information supplied by a physician thatserves as a medical director when temporarily suspending thecertification of an individual emergency medical service provider;and requiring commissioner institute proceedings for a hearing ifan individual emergency medical provider’s certification istemporarily suspended.

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

Eng. Com. Sub. for House Bill No. 4046, Repealing obsoletecode provisions.

On second reading, coming up in regular order, was read asecond time.

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

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

That §16-1-16, §19-12A-3, §25-6-1, §25-6-2, §25-6-3, §25-6-4,§25-6-5, §25-6-6, §25-6-7 and §30-1-15 of the Code of WestVirginia, 1931, as amended, be repealed; that §5-6-1 of said codebe amended and reenacted; that §5A-1-11 of said code be amended andreenacted; that §5B-1-1a of said code be amended and reenacted;that §5B-2F-2 of said code be amended and reenacted; that §9-2-1aof said code be amended and reenacted; that §17B-2-7a of said codebe amended and reenacted; that §17C-15-44 of said code be amendedand reenacted; that §18-10A-2 of said code be amended andreenacted; that §19-1-3a of said code be amended and reenacted;that §19-21A-4 of said code be amended and reenacted; that§22C-12-6 of said code be amended and reenacted; that §24-1-3 ofsaid code be amended and reenacted; that §24A-1A-2 of said code beamended and reenacted; that §24E-1-11 of said code be amended andreenacted; and that §47A-1-1 of said code be amended and reenacted,all to read as follows:

CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS;MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.

ARTICLE 6. STATE BUILDINGS.

§5-6-1. State Building Commission; composition; appointment, termsand qualifications of members; chairman and secretary;compensation and expenses; powers and duties generally;frequency of meetings.

"The State Office Building Commission of West Virginia, heretocreated, shall continue in existence, but on and after February 9,1966, shall be known and designated as the (a) The State BuildingCommission of West Virginia and shall continue is continued as abody corporate and as an agency of the State of West Virginia. Onand after the date aforesaid, the

(b) The commission shall consist consists of the Governor,Attorney General, State Treasurer and four additional members to beappointed by the Governor by and with the advice and consent of theSenate.

(c) The terms of office for said the appointed members to beappointed by the Governor shall be is four years. except that theterms of office of the first four members so appointed by theGovernor shall be for one, two, three and four years, respectively. No more than three of such the appointed members so appointed bythe Governor shall be members of the same political party, norshall any of said the appointed members be members or employees ofthe executive, legislative or judicial branches of government ofWest Virginia or any political subdivision thereof.

(d) The Governor shall be chairman of the commission. TheSecretary of State shall be a member of the commission and serve asits secretary, but shall not have the right to vote upon mattersbefore the commission. All members of the commission shall becitizens and residents of this state.

(e) The members of the commission shall be paid or reimbursedfor their necessary expenses incurred under this article, but shallreceive no compensation for their services as members or officersof the commission: Provided, That each member of the commissionappointed by the Governor shall, in addition to such reimbursem*ntfor necessary expenses, receive an amount not to exceed the samecompensation as is paid to members of the Legislature for theirinterim duties as recommended by the Citizens LegislativeCompensation Commission and authorized by law for each day orsubstantial portion thereof that he or she is engaged in the workof the commission. Such expenses and per diem shall be paid solelyfrom funds provided under the authority of this article, and thecommission shall not proceed to exercise or carry out any authorityor power herein given it to bind said commission beyond the extentto which money has been provided under the authority of thisarticle.

(f) On or before the fifteenth day of each month, thecommission shall prepare and transmit to the President and MinorityLeader of the Senate and the Speaker and the Minority Leader of theHouse of Delegates a report covering the activities of the saidcommission for the preceding calendar month.

Pursuant to the provisions of article ten, chapter four ofthis code, the state building commission shall continue to existuntil the first day of July, two thousand.

CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.

ARTICLE 1. DEPARTMENT OF ADMINISTRATION.

§5A-1-11. State Americans with Disabilities Coordinator.

(a) There is hereby created continued within the Department ofAdministration the position of the state Americans withDisabilities Coordinator, who shall be appointed by the Secretaryof the Department of Administration with input from the chairpersonfrom each of the following four councils:

(1) The Developmental Disabilities Council;

(2) The Statewide Independent Living Council;

(3) The Mental Health Planning Council; and

(4) The State Rehabilitation Council.

(b) The coordinator shall be a full-time employee, and shallhave an in-depth working knowledge of the challenges facing personswith disabilities. The coordinator may be a current employee ofthe Department of Administration or other state agency employee.

(1) Advise the Director of Personnel in the development ofcomprehensive policies and programs for the development,implementation and monitoring of a statewide program to assurecompliance with 42 U.S.C. §12101, et seq., the federal Americanswith Disabilities Act;

(2) Assist in the formulation of rules and standards relatingto the review, investigation and resolution of complaints ofdiscrimination in employment, education, housing and publicaccommodation;

(3) Consult and collaborate with state and federal agencyofficials in the state plan development;

(4) Consult and collaborate with agency Americans withdisabilities officers on the appropriate training for managers andsupervisors on regulations and issues;

(5) Represent the state on local, state and nationalcommittees and panels related to Americans with disabilities;

(6) Advise the Governor and agency heads on Americans withdisabilities issues;

(7) Consult with state equal employment opportunity officerson the hiring of persons with disabilities; and

(8) Be available to inspect and advise the leasing section ofthe Division of Purchasing on all physical properties owned orleased by the State of West Virginia for compliance with 42 U.S.C.§12101, et seq., the federal Americans with Disabilities Act.

(d)(1) The Secretary of the Department of Administration mayassess, charge and collect fees from each state spending unit whichutilizes the services of the coordinator, for the direct costs andexpenses incurred by the coordinator in providing those services. Costs and expenses include travel, materials, equipment andsupplies. Moneys shall be collected through the Division ofFinance.

(2) A state spending unit shall agree in writing to all costsand expenses before the services by the Americans with disabilitiescoordinator are rendered.

(e) There is hereby created continued in the Department ofAdministration a special fund to be named the “Americans withDisabilities Coordinator Fund”, which shall be an interest-bearingaccount and may be invested in accordance with the provisions ofarticle six, chapter twelve of this code, with the interest incomea proper credit to the fund. Funds paid into the account may bederived from the following sources:

(1) All moneys received from state spending units for thecosts and expenses incurred by the state Americans withdisabilities coordinator for providing services related to thestate’s implementation and compliance with 42 U.S.C. §12101, etseq., the federal Americans with Disabilities Act;

(2) Any gifts, grants, bequests, transfers or donations whichmay be received from any governmental entity or unit or any person,firm, foundation or corporation; and

(3) All interest or return on investment accruing to the fund.

(f) Moneys in the fund are to be used for the costs andexpenses incurred pursuant to this section. Any balance includingaccrued interest in this special fund at the end of any fiscal yearshall not revert to the General Revenue Fund, but shall remain inthe fund for use by the Secretary of the Department ofAdministration for providing additional Americans with disabilitiescoordinator services within the State of West Virginia in theensuing fiscal years.

(g) The Secretary of the Department of Administration shallreport annually on the fund to the Governor, President of theSenate and Speaker of the House of Delegates. The report must beon CD ROM or other electronic media and shall not be in printformat.

(h) The state Americans with disabilities coordinator shallcontinue to exist until the first day of July, two thousand nine,unless sooner terminated, continued or reestablished pursuant tothe provisions of article ten, chapter four of this code.

CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.

ARTICLE 1. DEPARTMENT OF COMMERCE.

§5B-1-1a. Marketing and Communications Office.

(a) There is hereby created continued in the Department ofCommerce the Marketing and Communications Office. The office iscreated to provide marketing and communications goods and servicesto other state agencies, departments, units of state or localgovernment or other entity or person.

(b) The office is authorized to charge for goods and servicesit provides to other state agencies. The Secretary of theDepartment of Commerce shall approve a fee schedule determining theamounts that may be charged for goods and services provided by theoffice to other state agencies.

(c) All moneys collected shall be deposited in a specialaccount in the State Treasury to be known as the Department ofCommerce Marketing and Communications Operating Fund. Expendituresfrom the fund shall be for the operation of the office and are notauthorized from collections but are to be made only in accordancewith appropriation by the Legislature and in accordance with theprovisions of article two, chapter eleven-b of this code. Provided, That for the fiscal year ending June 30, 2008,expenditures are authorized from collections and shall be expendedat the discretion of the Secretary of the Department of Commercerather than pursuant to appropriation by the Legislature.

(d) Any balance remaining at the end of any fiscal year shallnot revert to the General Revenue Fund, but shall remain in thefund for expenditures in accordance with the purposes set forth inthis section.

(e) The Department of Commerce shall develop and maintain asystem of annual or more frequent performance measures useful ingauging the efficiency and effectiveness of the office’s marketingand communications activities. The measures shall also reflect theoffice’s efficiency and effectiveness with respect to commerciallyavailable marketing and communications services and any privatesector benchmarks which might be identified or created. For thepurposes of this section, “performance measures” means income,output, quality, self-sufficiency and outcome metrics.

(f) Beginning on January 1, 2008, and annually every yearthereafter On January 1 of each year, the Secretary of theDepartment of Commerce shall report to the Joint Committee onGovernment and Finance, the Joint Standing Committee on Finance andthe Joint Commission on Economic Development on the performance ofthe office. This report is to include a statement of theperformance measurements for the office developed by the Secretaryof the Department of Commerce and an analysis of the office’sperformance.

(g) Pursuant to the provisions of article ten, chapter four ofthis code, the Marketing and Communications Office shall continueto exist until the first day of July, two thousand ten, unlesssooner terminated, continued or reestablished.

ARTICLE 2F. DIVISION OF ENERGY.

§5B-2F-2. Purpose; office of Director for Energy Development;director to be member of Public Energy Authority; division todevelop energy policy and development plan; contents of energypolicy and development plan; and division to promote energyinitiatives.

(a) Effective July 1, 2007, The Division of Energy is createdcontinued as a state agency under the Department of Commerce. Thedivision may receive federal funds. The division shall beadministered by a director, who shall be appointed by the Governor,by and with the advice and consent of the Senate, and shallcontinue to serve until his or her successor is appointed andqualified as provided. The director shall be selected with specialpreference and consideration given to his or her training,experience, capacity and interest in energy policy and developmentactivities.

(b) Creation of the The division is intended to provideleadership for developing energy policies emphasizing the increasedefficiency of energy use, the increased development and productionof new and existing domestic energy sources, the increasedawareness of energy use on the environment and the economy,dependable, efficient and economical statewide energy systemscapable of supporting the needs of the state, increased energyself-sufficiency where the ratio of indigenous to imported energyuse is increased, reduce the ratio energy consumption to economicactivity and maintain low-cost energy. The energy policies anddevelopment plans shall also provide direction for the privatesector.

(c) The director shall administer the daily operations of thePublic Energy Authority provided under the provisions of chapterfive-d of this code. The director shall also have authority overthe Office of Coalfield Community Development, created by theprovisions of article two-a of this chapter, and the energyefficiency program existing under the West Virginia DevelopmentOffice which are hereby transferred to the division. The directorshall effectuate coordination of these entities relative to thepurposes provided in this article.

(d) The division shall develop an energy policy and shallreport the same back to the Governor and the Joint Committee onGovernment and Finance before December 1, 2007. The energy policyshall be a five-year plan setting forth the state's energy policiesand shall provide a direction for the private sector. Prior to theexpiration of the energy policy, the division shall begin review ofthe policy and submit a revised energy policy to the Governor andthe Joint Committee on Government and Finance six months before theexpiration of the policy.

(e) The director shall be a member of the Public EnergyAuthority and as such shall attend and participate in all officialmeetings and public hearings conducted under the auspices of theauthority.

(f) The division shall prepare and submit an annual energydevelopment plan to the Governor and the Joint Committee onGovernment and Finance on or before December 1 of each year. Thedevelopment plan shall relate to the division’s implementation ofthe energy policy and the activities of the division during theprevious year. The development plan shall include any recommendedlegislation. The Public Energy Authority, the Office of CoalfieldCommunity Development, the energy efficiency program, theDepartment of Environmental Protection and the Public ServiceCommission, in addition to their other duties prescribed by thiscode, shall assist the division and the director in the developmentof an energy policy and related development plans. The energydevelopment plan shall set forth the plans for implementing thestate's energy policy and shall provide a direction for the privatesector. The energy development plan shall recognize the powers ofthe Public Energy Authority as to development and financing ofprojects under its jurisdiction and shall make such recommendationsas are reasonable and practicable for the exercise of such powers.

(g) The division shall hold public hearings and meetings withnotice to receive public input regarding proposed energy policiesand development plans. The energy policy and development plansrequired by subsections (d) and (f) of this section shall addressincreased efficiency of energy use, traditional and alternativeenergy, water as a resource and a component of energy production,energy distribution systems, the siting of energy facilities, theincreased development and production of new and existing domesticenergy sources, increased awareness of energy use on theenvironment and the economy, energy infrastructure, the developmentand implementation of renewable, clean, technically innovative andadvanced energy projects in this state. Projects may include,without limitation, solar and wind energy, low-impact hydro power,geothermal, biomass, landfill gas, fuel cells, renewable hydrogenfuel technologies, waste coal, coal mine methane, coal gasificationto ultraclean fuels, solid waste to fuel grade ethanol and coalliquefaction technologies.

(h) The division may propose rules for legislative approval inaccordance with the provisions of article three, chapter twenty-nine-a of this code designed to implement an energy policy anddevelopment plan in accordance with the provisions of this chapter.

(i) The energy policy and development plans required bysubsections (d) and (f) of this section shall identify and reporton the energy infrastructure in this state and include withoutlimitation energy infrastructure related to protecting the state'sessential data, information systems and critical governmentservices in times of emergency, inoperativeness or disaster. Inconsultation with the Director of the Division of Homeland Securityand Emergency Management, the director of the division shallencourage the development of energy infrastructure and strategicresources that will ensure the continuity of governmentaloperations in situations of emergency, inoperativeness or disaster.

(j) In preparing or revising the energy policy and developmentplan, the division may rely upon internal staff reports or theadvice of outside advisors or consultants and may procure suchservices with the consent of the Secretary of Commerce. Thedivision may also involve national, state and local governmentleadership and energy experts.

(k) The division shall prepare an energy use database,including without limitation, end-use applications andinfrastructure needs for different classes of energy usersincluding residential, commercial and industrial users, dataregarding the interdependencies and sources of electricity, oil,coal, water and gas infrastructure, data regarding energy use ofschools and state-owned facilities and collect data on the impactof the energy policy and development plan on the decisions andstrategies of energy users of the state.

(l) The division shall promote collaboration between thestate's universities and colleges, private industry and nonprofitorganizations to encourage energy research and leverage availablefederal energy research and development resources.

(m) The division shall promote initiatives to enhance thenation's energy security through research and development directedat transforming the state's energy resources into the resourcesthat fuel the nation.

(n) The Performance Evaluation and Research Division of theLegislative Auditor’s office shall perform an agency review of theDivision of Energy in 2010 as part of its review of the Departmentof Commerce as set forth in article four, chapter ten of this code.

(o) (n) The division shall work with the President of theUnited States and his or her administration to develop a plan thatwould allow West Virginia to become the leader in transitioning theUnited States to a new energy future.

(p) (o) The division is to determine the best way for WestVirginia to utilize its resources and any federal funding todevelop the technologies that are necessary for such a transition.

(q) (p) The division is to clearly articulate West Virginia’sposition on an energy solution for the United States thatencompasses clean coal, natural gas, transtech energy technologiesand renewable energy technologies.

(r) (q) The division shall develop and distribute aninformational program and policies that emphasize the importance ofWest Virginia energy resources and their positive impact on theeastern seaboard and the nation.

(s) (r) The division shall monitor legal challenges to theenergy industries in the state and submit a report quarterly to theJoint Committee on Government and Finance. The report shall containinformation relating to any litigation that challenges any statutethat could affect the production, distribution and utilization ofnatural resources of the state.

CHAPTER 9. HUMAN SERVICES.

ARTICLE 2. COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES ANDRESPONSIBILITIES GENERALLY.

§9-2-1a. Department of Health and Human Resources.

The Department of Health and Human Resources shall be chargedwith the administration of this chapter. Pursuant to theprovisions of article ten, chapter four of this code, theDepartment of Health and Human Resources shall continue to existuntil the first day of July, two thousand six, unless soonerterminated, continued or reestablished.

CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.

ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.

§17B-2-7a. Driver's Licensing Advisory Board.

(a) The Driver's Licensing Advisory Board is hereby continued. The board shall consist of five members to be appointed by theGovernor, by and with the advice and consent of the Senate, forterms of three years, except that as to the members firstappointed, two shall be appointed for a term of three years, twoshall be appointed for a term of two years and one shall beappointed for a term of one year, all from July 1, 1974. Allvacancies occurring on the board shall be filled by the Governor,by and with the advice and consent of the Senate. One member ofthe board shall be an optometrist duly registered to practiceoptometry in this state and the other four members of the boardshall be physicians or surgeons duly licensed to practice medicineor surgery in this state. The Governor shall appoint personsqualified to serve on the board who, in his opinion, will bestserve the work and function of the board.

(b) The board shall advise the Commissioner of Motor Vehiclesas to vision standards and all other medical criteria of whateverkind or nature relevant to the licensing of persons to operatemotor vehicles under the provisions of this chapter. The boardshall, upon request, advise the Commissioner of Motor Vehicles asto the mental or physical fitness of an applicant for, or theholder of, a license to operate a motor vehicle. The board shallfurnish the commissioner with all such medical standards,statistics, data, professional information and advice as he mayreasonably request.

(c) The members of the board shall receive compensation andexpense reimbursem*nt in an amount not to exceed the samecompensation and expense reimbursem*nt as is paid to members of theLegislature for their interim duties as recommended by the CitizensLegislative Compensation Commission and authorized by law, for eachday or substantial portion thereof engaged in the performance ofofficial duties.

Pursuant to the provisions of article ten, chapter four ofthis code, the driver's licensing advisory board shall continue toexist until the first day of July, two thousand nine.

CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.

ARTICLE 15. EQUIPMENT.

§17C-15-44. Safety equipment and requirements for motorcyclists,motorcycles, motor-driven cycles and mopeds; Motorcycle SafetyStandards and Education Committee.

(a) No person shall operate or be a passenger on anymotorcycle or motor-driven cycle unless the person is wearingsecurely fastened on his or her head by either a neck or chin strapa protective helmet designed to deflect blows, resist penetrationand spread impact forces. Any helmet worn by an operator orpassenger shall meet the current performance specificationsestablished by the American National Standards Institute Standard,Z 90.1, the United States Department of Transportation FederalMotor Vehicle Safety Standard No. 218 or Snell Safety Standards forProtective Headgear for Vehicle Users.

(b) No person shall operate or be a passenger on anymotorcycle or motor-driven cycle unless the person is wearingsafety, shatter-resistant eyeglasses (excluding contact lenses), oreyegoggles or face shield that complies with the performancespecifications established by the American National StandardsInstitute for Head, Eye and Respiratory Protection, Z 2.1. Inaddition, if any motorcycle, motor-driven cycle or moped isequipped with a windshield or windscreen, the windshield orwindscreen shall be constructed of safety, shatter-resistantmaterial that complies with the performance specificationsestablished by the Department of Transportation Federal MotorVehicle Safety Standard No. 205 and American National StandardsInstitute, Safety Glazing Materials for Glazing Motor VehiclesOperated on Land Highways, Standard Z 26.1.

(c) No person shall operate a motorcycle, motor-driven cycleor moped on which the handlebars or grips are more than fifteeninches higher than the uppermost part of the operator's seat whenthe seat is not depressed in any manner.

(d) A person operating a motorcycle, motor-driven cycle ormoped shall ride in a seated position facing forward and only upona permanent operator's seat attached to the vehicle. No operatorshall carry any other person nor shall any other person ride on thevehicle unless the vehicle is designed to carry more than oneperson, in which event a passenger may ride behind the operatorupon the permanent operator's seat if it is designed for twopersons, or upon another seat firmly attached to the vehicle to therear of the operator's seat and equipped with footrests designedand located for use by the passenger or in a sidecar firmlyattached to the vehicle. No person shall ride side saddle on aseat. An operator may carry as many passengers as there are seatsand footrests to accommodate those passengers. Additionalpassengers may be carried in a factory produced sidecar providedthat there is one passenger per seat. Passengers riding in asidecar shall be restrained by safety belts.

(e) Every motorcycle, motor-driven cycle and moped shall beequipped with a rearview mirror affixed to the handlebars orfairings and adjusted so that the operator shall have a clear viewof the road and condition of traffic behind him or her for adistance of at least two hundred feet.

(f) There is hereby created continued a six member MotorcycleSafety and Education Committee consisting of: The Superintendentof the State Police or a designee; the Commissioner of MotorVehicles or a designee; the Director of the West Virginia SafetyCouncil or a designee; a licensed motorcycle operator; an owner ofa motorcycle dealership; and a supplier of aftermarketnonfranchised motorcycle supplies. The nongovernmentalrepresentatives shall be appointed by the Governor with the adviceand consent of the Senate, shall serve without compensation, andthe terms shall be for three years, except that as to the membersfirst appointed, one shall be appointed for a term of one year, oneshall be appointed for a term of two years and one shall beappointed for a term of three years. Members may be reappointed tothe committee.

The committee shall continue to exist pursuant to theprovisions of article ten, chapter four of this code until thefirst day of July, one thousand nine hundred ninety-nine, to allowfor the completion of a preliminary performance review by the jointcommittee on government operations.

(g) The committee is hereby authorized to recommend to theSuperintendent of Public Safety types and makes of protectivehelmets, eye protection devices and equipment offered for sale,purchased or used by any person. The committee is authorized tomake recommendations to the Commissioner of Motor Vehiclesregarding the use of the moneys in the Motorcycle Safety Fundcreated under section seven, article one-d, chapter seventeen-b ofthis code.

CHAPTER 18. EDUCATION.

ARTICLE 10A. REHABILITATION SERVICES.

§18-10A-2. Division of Rehabilitation Services.

(a) The Division of Rehabilitation Services is herebytransferred to continued under the Department of Education and theArts created in article one, chapter five-f of this code. Thesecretary shall appoint any such board, commission or council overthe division to the extent required by federal law to qualify forfederal funds for providing rehabilitation services for disabledpersons. The secretary and such the boards, commissions orcouncils as he or she is required by federal law to appoint areauthorized and directed to cooperate with the federal government tothe fullest extent in an effort to provide rehabilitation servicesfor disabled persons.

(b) References in this article or article ten-b of thischapter to the state Board of Vocational Education, the state Boardof Rehabilitation or the state board as the governing board ofvocational or other rehabilitation services or facilities means theSecretary of Education and the Arts. All references in the code tothe Division of Vocational Rehabilitation means the Division ofRehabilitation Services and all references to the Director of theDivision of Vocational Rehabilitation means the Director of theDivision of Rehabilitation Services.

Pursuant to the provisions of article ten, chapter four ofthis code, the Division of Rehabilitation Services shall continueto exist until the first day of July, two thousand four.

CHAPTER 19. AGRICULTURE.

ARTICLE 1. DEPARTMENT OF AGRICULTURE.

§19-1-3a. Marketing and Development Division duties.

In recognition that article ten, chapter four of this coderequires a preliminary performance review of the rural resourcedivision of the Department of Agriculture and that performancestandards must be stated before such audit can be performed, therural resources division is hereby formally established and renamedthe marketing and development division in the Department ofa*griculture. The duties of the Marketing and Development Divisionare to:

(1) Establish marketing, promotional and development programsto advance West Virginia agriculture in the domestic andinternational markets; to provide

(2) Provide grading, inspection and market news services tothe various elements of the West Virginia agricultural industry;and to regulate

(3) Regulate and license individuals involved in the marketingof agricultural products.

ARTICLE 21A. CONSERVATION DISTRICTS.

§19-21A-4. State Conservation Committee.

(a) The State Conservation Committee is continued. It servesas an agency of the state and is to perform the functions conferredupon it in this article. The committee consists of the followingten members:

(1) Four citizen members;

(2) The following ex officio members or his or her designee:

(A) The Director of the state Cooperative Extension Service;

(B) The Director of the state Agricultural and ForestryExperiment Station;

(D) The State Commissioner of Agriculture, who is thechairperson of the committee;

(E) The Director of the Division of Forestry; and

(F) The President of the West Virginia Association ofConservation Districts.

(b) The Governor shall appoint, by and with the consent of theSenate, the four citizen members. Members shall be appointed forfour-year terms, which are staggered in accordance with the initialappointments under prior enactment of this section. In the eventof a vacancy, the appointment is for the unexpired term.

(c) The committee may invite the Secretary of Agriculture ofthe United States of America to appoint one person to serve withthe committee as an advisory member.

(d) The committee shall keep a record of its official actions,shall adopt a seal, which shall be judicially noticed, and mayperform those acts, hold public hearings and adopt or propose forlegislative approval rules necessary for the execution of itsfunctions under this article.

(e) The State Conservation Committee may employ anadministrative officer, technical experts and other agents andemployees, permanent and temporary, as it requires. Theadministrative officer and support staff shall be known as the WestVirginia Conservation Agency. The committee shall determine theirqualifications, duties and compensation. The committee may callupon the Attorney General of the state for legal services itrequires. It may delegate to its chairperson, to one or more ofits members, or to one or more agents or employees powers andduties it considers proper. The committee may secure necessary andsuitable office accommodations and the necessary supplies andequipment. Upon request of the committee, for the purpose ofcarrying out any of its functions, the supervising officer of anystate agency or of any state institution of learning shall, insofaras may be possible, under available appropriations and having dueregard to the needs of the agency to which the request is directed,assign or detail to the committee, members of the staff orpersonnel of the agency or institution of learning and make specialreports, surveys or studies required by the committee.

(f) A member of the committee holds office so long as he orshe retains the office by virtue of which he or she is serving onthe committee. A majority of the committee is a quorum and theconcurrence of a majority in any matter within their duties isrequired for its determination. The chairperson and members of thecommittee may receive no compensation for their services on thecommittee, but are entitled to reimbursem*nt of expenses, includingtraveling expenses necessarily incurred in the discharge of theirduties on the committee. The committee shall:

(1) Require the execution of surety bonds for all employeesand officers who are entrusted with funds or property;

(2) Provide for the keeping of a full and accurate publicrecord of all proceedings and of all resolutions, rules and ordersissued or adopted; and

(3) Provide for an annual audit of the accounts of receiptsand disbursem*nts.

(g) In addition to other duties and powers conferred upon thestate Conservation Committee, it may:

(1) Offer appropriate assistance to the supervisors ofconservation districts, organized as provided in this article, inthe carrying out of any of their powers and programs;

(2) Keep the supervisors of each of the several districts,organized under the provisions of this article, informed of theactivities and experience of all other districts organized underthis article and facilitate an interchange of advice and experiencebetween the districts and cooperation between them;

(3) Coordinate the programs of the several conservationdistricts so far as this may be done by advice and consultation;

(4) Secure the cooperation and assistance of the United Statesand any of its agencies and of agencies of this state in the workof the districts;

(5) Disseminate information throughout the state concerningthe activities and programs of the conservation districts andencourage the formation of the districts in areas where theirorganization is desirable;

(6) Accept and receive donations, gifts, contributions, grantsand appropriations in money, services, materials or otherwise fromthe United States or any of its agencies, from the State of WestVirginia or from other sources and use or expend the money,services, materials or other contributions in carrying out thepolicy and provisions of this article, including the right toallocate the money, services or materials in part to the variousconservation districts created by this article in order to assistthem in carrying on their operations; and

(7) Obtain options upon and acquire by purchase, exchange,lease, gift, grant, bequest, devise or otherwise any property, realor personal, or rights or interests in the property; maintain,administer, operate and improve any properties acquired; receiveand retain income from the property and to expend the income asrequired for operation, maintenance, administration or improvementof the properties or in otherwise carrying out the purposes andprovisions of this article; and sell, lease or otherwise dispose ofany of its property or interests in the property in furtherance ofthe purposes and the provisions of this article. Money receivedfrom the sale of land acquired in the small watershed program shallbe deposited in the special account of the state ConservationCommittee and expended as provided in this article;

(8) To promulgate emergency and legislative Propose rules forlegislative approval to effectuate the provisions of this article;as amended and reenacted by the Legislature during the 2005 regularsession of the Legislature and

(9) Upon a Governor’s proclamation declaring a state ofemergency or federal disaster declaration, the state committee, itsemployees or agents may enter any water of the state for thepurpose of removing debris and other obstruction which impede waterflow and present additional flood hazards. The agency shall makereasonable efforts to secure the permission of the landowner beforeentering any private property in connection with these removalactivities. The exercise of this limited authority does notconstitute taking of private property or trespass. This authorityshall continue for the duration of the Governor’s proclamation orthe federal disaster declaration.

(10) The State Conservation Committee is continued until July1, 2012, pursuant to the provisions of article four, chapter ten ofthe Code of West Virginia, unless sooner terminated, continued orreestablished pursuant to the provisions of that article.

CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS, AUTHORITIES,COMMISSIONS AND COMPACTS.

ARTICLE 12. OHIO RIVER VALLEY WATER SANITATION COMMISSION.

§22C-12-6. Legislative declaration.

This article shall take effect and become operative and thecompact be executed for and on behalf of this state only from andafter the approval, ratification, and adoption and entering intothereof by the states of New York, Pennsylvania, Ohio and Virginia.

After having conducted a preliminary performance reviewthrough its joint committee on government operations, pursuant toarticle ten, chapter four of this code,

The Legislature hereby finds and declares that West Virginiashould remain a member of the compact. Accordingly,notwithstanding the provisions of article ten, chapter four of thiscode, West Virginia shall continue to be a member of this compactuntil the first day of July, two thousand six, unless soonerterminated, continued or reestablished by act of the Legislature.

CHAPTER 24. PUBLIC SERVICE COMMISSION.

ARTICLE 1. GENERAL PROVISIONS.

§24-1-3. Public Service Commission; membership; chairman;compensation.

(a) The Public Service Commission of West Virginia iscontinued and directed as provided by this chapter, chaptertwenty-four-a, chapter twenty-four-b and chapter twenty-four-d ofthis code. After having conducted a performance audit through itsjoint committee on government operations, pursuant to section nine,article ten, chapter four of this code, the Legislature herebyfinds and declares that the Public Service Commission should becontinued and reestablished. Accordingly, notwithstanding theprovisions of section five, article ten, chapter four of this code,the Public Service Commission shall continue to exist until thefirst day of July, two thousand three. The Public ServiceCommission may sue and be sued by that name.

(b) The Public Service Commission shall consist consists ofthree members who shall be appointed by the Governor, with theadvice and consent of the Senate. The commissioners shall becitizens and residents of this state and at least one of them shallbe duly licensed to practice law in West Virginia, with not lessthan ten years’ actual work experience in the legal profession asa member of a state bar. No more than two of the commissionersshall be members of the same political party. Each commissionershall, before entering upon the duties of his or her office, takeand subscribe to the oath provided by section five, article IV ofthe Constitution of this state. The oath shall be filed in theOffice of the Secretary of State. The Governor shall designate oneof the commissioners to serve as chairman at the Governor’s willand pleasure. The chairman shall be the chief administrativeofficer of the commission. The Governor may remove anycommissioner only for incompetency, neglect of duty, grossimmorality, malfeasance in office or violation of subsection (c)(d) of this section.

(b) The unexpired terms of members of the Public ServiceCommission at the time this subsection becomes effective arecontinued. Upon expiration of the terms, appointments (c)Appointments are for terms of six years, except that an appointmentto fill a vacancy is for the unexpired term only. Thecommissioners whose terms are terminated by the provisions of thissubsection are eligible for reappointment.

(c) (d) No person while in the employ of, or holding anyofficial relation to, any public utility subject to the provisionsof this chapter or holding any stocks or bonds of a public utilitysubject to the provisions of this chapter or who is pecuniarilyinterested in a public utility subject to the provisions of thischapter may serve as a member of the commission or as an employeeof the commission. Nor may any No commissioner may be a candidatefor or hold public office or be a member of any political committeewhile acting as a commissioner. nor may any No commissioner oremployee of the commission may receive any pass, freetransportation or other thing of value, either directly orindirectly, from any public utility or motor carrier subject to theprovisions of this chapter. In case any of the commissioners If acommissioner becomes a candidate for any public office or a memberof any political committee, the Governor shall remove him or herfrom office and shall appoint a new commissioner to fill thevacancy created.

(d) (e) The salaries of members of the Public ServiceCommission and the manner in which they are paid established by theprior enactment of this section are continued. Effective July 1,2001, the The annual salary of each commissioner provided insection two-a, article seven, chapter six of this code shall bepaid in monthly installments from the special funds in thepercentages that follow:

(1) From the Public Service Commission Fund collected underthe provisions of section six, article three of this chapter,eighty percent;

(2) From the Public Service Commission Motor Carrier Fundcollected under the provisions of section six, article six, chaptertwenty-four-a of this code, seventeen percent; and

(3) From the Public Service Commission Gas Pipeline SafetyFund collected under the provisions of section three, article five,chapter twenty-four-b of this code, three percent.

(f) In addition to the salary provided for all commissionersin section two-a, article seven, chapter six of this code, thechairman of the commission shall receive $5,000 per annum to bepaid in monthly installments from the Public Service CommissionFund collected under the provisions of section six, article threeof this chapter.

CHAPTER 24A. MOTOR CARRIERS OF PASSENGERS AND PROPERTY FOR HIRE.

ARTICLE 1A. COMMERCIAL VEHICLE REGULATION.

§24A-1A-2. Commercial Motor Vehicle Weight and Safety EnforcementAdvisory Committee; purpose; members; terms.

(a) There is created the The Commercial Motor Vehicle Weightand Safety Enforcement Advisory Committee is continued. Thepurpose of which is to study the implementation of the commercialmotor vehicle weight and safety enforcement program set forth inthis article.

(b) The committee consists of the following members:

(1) One member who is an employee of the Division of Highways,to be appointed by the Commissioner of Highways;

(2) One member who is an employee of the Public ServiceCommission, to be appointed by the Chairman of the Public ServiceCommission;

(3) One member who is a State Police officer, to be appointedby the Superintendent of the State Police;

(4) One member who is an employee of the Division of MotorVehicles, to be appointed by the Commissioner of Motor Vehicles;

(5) One member who is an employee of the Development Office,to be appointed by the Governor;

(6) One member who is representative of the coal industry, tobe appointed by the Governor;

(7) One member of the Senate, to be appointed by the Presidentof the Senate;

(8) One member of the House of Delegates, to be appointed bythe Speaker of the House of Delegates;

(9) Two citizen members, to be appointed by the Governor;

(10) One member of the largest organization representing coalminers, to be appointed by the Governor; and

(11) One member of the largest organization representingnatural resource transportation drivers, to be appointed by theGovernor.

(d) The committee shall annually nominate from its members achair, who shall hold office for one year.

(e) The committee shall hold at least four meetings each yearor more often as may, in the discretion of the chair, be necessaryto effectuate the purposes of this article.

(f) The public members of the committee may receivecompensation for attendance at official meetings, not to exceed theamount paid to members of the Legislature for their interim dutiesas recommended by the Citizens Legislative Compensation Commissionand authorized by law.

(g) Committee members may be reimbursed for actual andnecessary expenses incurred for each day or portion of a dayengaged in the discharge of committee duties in a manner consistentwith guidelines of the Travel Management Office of the Departmentof Administration.

(h) On or before January 1 2004, and of each subsequent year,thereafter the committee shall submit to the Governor and to theLegislature a report of its recommendations for improving theeffectiveness of the commercial vehicle weight and safetyenforcement program.

(i) The commercial vehicle weight and safety enforcementadvisory committee shall continue to exist until the first day ofJuly, two thousand seven, pursuant to the provisions of articleten, chapter four of this code, unless sooner terminated, continuedor reestablished pursuant to the provisions of that article.

CHAPTER 24E. STATEWIDE ADDRESSING AND MAPPING.

ARTICLE 1. WEST VIRGINIA STATEWIDE ADDRESSING AND MAPPING BOARD.

§24E-1-11. Advisory board; duties of board and county commissions.

(a) The board shall terminate on July 1, 2009, after which itshall have one year to wind up its affairs pursuant to theprovisions of article ten, chapter four of this code. Upon finaltermination, the board shall transfer all its

(a) The Statewide Addressing and Mapping Board is continued asan advisory board within the Division of Homeland Security andEmergency Management.

(b) Any right, title and interest the board has to any maps,compilations or other works that it created as a result of thestatewide addressing and mapping is transferred to the respectivecounty commissions.

(b) Upon final termination of the board, county

(c) County commissions shall maintain and update theaddressing and mapping systems within their respectivejurisdictions under the standards established by the board, asupdated thereafter by the Division of Homeland Security andEmergency Management, of the Department of Military Affairs andPublic Safety under this section and shall supply the updatedinformation to the division in the format it establishes throughits rule-making authority.

(c) Except as provided in subsection (b) of this section, uponfinal termination of the board, the powers and duties of the boardshall be transferred to the Division of Homeland Security andEmergency Management.

(d) Prior to the final termination of the board, the divisionmay propose rules for legislative approval in accordance with theprovisions of article three, chapter twenty-nine-a of this codewhich shall become effective only upon the final termination of theboard. The rules shall:

(1) Maintain and update the standards for statewide addressingand mapping;

(2) Establish standard reasonable fees, based on cost, to becharged by county commissions for copies or use of any maps,compilations or other works created as a result of the statewideaddressing and mapping, subject to the exemptions provided undersection nine of this article;

(3) Govern centralization and interoperability of the countysystems within the integrated statewide addressing and mappingsystem; and

(4) Ensure the public safety in any manner the divisionconsiders advisable.

(e) Upon final termination of the board, the division maypropose rules for legislative approval in accordance with theprovisions of article three, chapter twenty-nine-a of this code forthe purposes set forth in this article.

(f) Upon final termination of the board, the division maypromulgate emergency rules pursuant to the provisions of sectionfifteen, article three, chapter twenty-nine-a of this code.

(g) Rules (d) The rules in effect as of the reenactment ofthis article during the 2007 regular session will on July 1, 2012,shall remain in effect until amended, modified, repealed orreplaced pursuant to this article.

(h) Effective July 1, 2010, The Statewide Addressing andMapping Board shall become an advisory board within the Division ofHomeland Security and Emergency Management and will continue to becomposed as set forth in this article and the members will serve atthe will and pleasure of the Governor.

CHAPTER 47A. WEST VIRGINIA LENDING AND CREDIT RATE BOARD.

ARTICLE 1. LENDING AND CREDIT RATE BOARD.

§47A-1-1. Legislative findings; creation, membership, powers andduties of board; termination of board.

(a) The Legislature hereby finds and declares that:

(1) Changes in the permissible charges on loans, credit salesor transactions, forbearance or other similar transactions requiresspecialized knowledge of the needs of the citizens of West Virginiafor credit for personal and commercial purposes and knowledge ofthe availability of such credit at reasonable rates to the citizensof this state while affording a competitive return to personsextending such credit;

(2) Maximum charges on loans, credit sales or transactions,forbearance or other similar transactions executed in this stateshould be prescribed from time to time to reflect changed economicconditions, current interest rates and finance charges throughoutthe United States and the availability of credit within the statein order to promote the making of such loans in this state; and

(3) The prescribing of such maximum interest rates and financecharges can be accomplished most effectively and flexibly by aboard comprised of the heads of designated government agencies,university schools of business and administration and members ofthe public.

(b) In view of the foregoing findings, it is the purpose ofthis section to establish continue the West Virginia Lending andCredit Rate Board and authorize said board to prescribesemiannually the maximum interest rates and finance charges onloans, credit sales or transactions, forbearance or similartransactions made pursuant to this section subject to theprovisions, conditions and limitations hereinafter set forth and toauthorize lenders, sellers and other creditors to charge up to themaximum interest rates or finance charges so fixed. The ratesprescribed by the board are alternative rates and any creditor mayutilize either the rate or rates set by the board or any other rateor rates which the creditor is permitted to charge under any otherprovision of this code.

(1) The director of the Governor’s office of Economic andCommunity Development;

(2) The West Virginia State Treasurer;

(3) The West Virginia Banking Commissioner;

(4) The deans of the schools of business and administration atMarshall University and West Virginia University;

(5) The Director of the Division of Consumer Protection of theAttorney General's Office; and

(6) Three members of the public appointed by the Governor withthe advice and consent of the Senate. The members of the publicshall be appointed for terms of six years each, and until theirsuccessors are appointed and qualified; except that of the membersfirst appointed, one shall be appointed for a term of two years,one for a term of four years and one for a term of six years. Amember who has served one full term of six years shall beineligible for appointment for the next succeeding term. Vacanciesshall be filled by appointment of the Governor with the advice andconsent of the Senate, or if any vacancy remains unfilled for threemonths, by a majority vote of the board. The West Virginia BankingCommissioner shall serve as chairperson of the board and the rateor rates set by the board shall be determined by a majority vote ofthose members of the board in attendance at the respective boardmeeting.

(d) The West Virginia Lending and Credit Rate Board is herebyauthorized and directed to meet after December 31, 1983, on thefirst Tuesday of April and on the first Tuesday of October of eachyear or more or less frequently as required by the circ*mstancesand to prescribe by order a maximum rate of interest and financecharge for the next succeeding six months, effective on June 1 andon December 1, for any loans, credit sales or transactions,forbearance or similar transactions made pursuant to this section. In fixing said maximum rates of interest and finance charge, theboard shall take into consideration prevailing economic conditions,including the monthly index of long-term United States governmentbond yields for the preceding calendar month, yields onconventional commercial short-term loans and notes throughout WestVirginia and throughout the United States and on corporateinterest-bearing securities of high quality, the availability ofcredit at reasonable rates to the citizens of this state whichafford a competitive return to persons extending such credit andsuch other factors as the board may determine.

(e) Any petition proposing a change in the prescribed maximumrates of interest and finance charges must be filed in the officeof the Banking Commissioner no later than the February 15 in orderto be voted on at the board meeting on the first Tuesday of Apriland no later than August 15 in order to be voted on at the boardmeeting on the first Tuesday of October. Whenever any change inthe prescribed maximum rates of interest and finance charges isproposed the board shall schedule a hearing, at least fifteen daysprior to the board meeting at which the proposed rates of interestand finance charge will be voted on by the members of the board,and shall give all interested parties the opportunity to testifyand to submit information at such public hearing that is relevant. Notice of the scheduled public hearing shall be issued anddisseminated to the public at least twenty days prior to thescheduled date of the hearing.

(f) The board shall prescribe by order issued not later thanApril 20 and not later than October 20, in accordance with theprovisions of subsection (d) of this section, the maximum rates ofinterest and finance charge for the next succeeding six months forany loan, credit sale, forbearance or similar transaction madepursuant to this section and shall cause such the maximum rate ofinterest and finance charge to be issued and disseminated to thepublic, such maximum rate of interest and finance charge to beeffective on June 1 and December 1 for the next succeeding sixmonths.

(g) Notwithstanding the other provisions of this chapter, theWest Virginia Lending and Credit Rate Board shall not be requiredto meet if no petition has been filed with the board requesting ahearing and interest rates and economic conditions have not changedsufficiently to indicate that any change in the existing rate orderwould be required, and there are not at least two board members whoconcur that a meeting of the board is necessary. If the board doesnot meet, the maximum rates of interest and finance chargesprescribed by the board in the existing rate order shall remain infull force and effect until the next time the board meets andprescribes different maximum rates of interest and finance charges.

(h) If circ*mstances and economic conditions require, thechairperson or any three board members, at any time, may call anemergency interim meeting of the West Virginia Lending and CreditRate Board, at which time the chairperson shall give ten days’notice of the scheduled emergency meeting to the public. Allinterested parties shall have the opportunity to be heard and tosubmit information at such the emergency meeting that is relevant. Any and all emergency rate board orders shall be effective withinthirty days from the date of such the emergency meeting.

(i) Each member of the board, except those whose regularsalary is paid by the State of West Virginia, shall receive $75 perdiem while actually engaged in the performance of the duties of theboard. Each member shall be reimbursed for all reasonable andnecessary expenses actually incurred during the performance oftheir duties, except that in the event the expenses are paid by athird party the members shall not be reimbursed by the state. Thereimbursem*nt shall be paid out of the special revenue account ofthe Division of Banking upon a requisition upon the State Auditor,properly certified by the Banking Commissioner.

(j) In setting the maximum interest rates and finance charges,the board may set varying rates based on the type of credittransaction, the term of transaction, the type of debtor, the typeof creditor and other factors relevant to determination of suchdetermining the rates. In addition, the board may set varyingrates for ranges of principal balances within a single category ofcredit transactions.

(k) Pursuant to the provisions of article ten, chapter four ofthis code, the West Virginia lending and credit rate board shallcontinue to exist until the first day of July, two thousand five.

The bill (Eng. Com. Sub. for H. B. No. 4046), as amended, wasthen ordered to third reading.

On motion of Senator Unger, the constitutional rule requiringa bill to be read on three separate days was suspended by a vote offour fifths of the members present, taken by yeas and nays.

The nays were: None.

Absent: K. Facemyer--1.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.4046) was then read a third time and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4046) passed.

The following amendment to the title of the bill, from theCommittee on Government Organization, was reported by the Clerk andadopted:

Eng. Com. Sub. for House Bill No. 4046--A Bill to repeal§16-1-16, §19-12A-3, §25-6-1, §25-6-2, §25-6-3, §25-6-4, §25-6-5,§25-6-6, §25-6-7 and §30-1-15 of the Code of West Virginia, 1931,as amended; to amend and reenact §5-6-1 of said code; to amend andreenact §5A-1-11 of said code; to amend and reenact §5B-1-1a ofsaid code; to amend and reenact §5B-2F-2 of said code; to amend andreenact §9-2-1a of said code; to amend and reenact §17B-2-7a ofsaid code; to amend and reenact §17C-15-44 of said code; to amendand reenact §18-10A-2 of said code; to amend and reenact §19-1-3aof said code; to amend and reenact §19-21A-4 of said code; to amendand reenact §22C-12-6 of said code; to amend and reenact §24-1-3 ofsaid code; to amend and reenact §24A-1A-2 of said code; to amendand reenact §24E-1-11 of said code; and to amend and reenact§47A-1-1 of said code, all relating to obsolete code provisions;repealing outdated language; deleting references to continuationunder sunset provisions; and updating code provisions.

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

Eng. Com. Sub. for House Bill No. 4062, Creating an in-homedirect care workforce registry.

On second reading, coming up in regular order, was read asecond time.

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

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

§16-5P-15. Establishment of In-home Care Registry.

(a) There is established within the Bureau of Senior Servicesan in-home care worker registry which is to be maintained by thebureau. The purpose of the registry is to provide the public alist of in-home care workers, along with their qualifications, whovoluntarily agree to be included and who have passed a criminalbackground check.

(b) "In-home care worker" means an unlicensed person whoprovides personal care or other services and supports to personswith disabilities or to the elderly in order to enhance theirwell-being and which involves face-to-face direct contact with theperson. Functions performed may include but are not limited toassistance and training in activities of daily living, personalcare services, and job-related supports.

(c) The bureau shall propose rules for legislative approval inaccordance with the provisions of article three, chaptertwenty-nine-a of this code, to establish the following:

(1) The registry of in-home care workers;

(2) The requirements for inclusion on the registry as an‘in-home care worker,’ including educational attainment;

(3) A fee schedule of proposed rates for those services andsupports provided by the in-home care worker based uponqualifications of the in-home care workers, such as educationalattainment;

(4) Requirement of completion and passage of a criminalbackground check, consisting of checking the National InstantCriminal Background Check System and the West Virginia criminalhistory record responses. If an in-home care worker is included onthe list with a criminal history indicated on his or her criminalback ground check, that information shall be noted on the registry. The bureau may not remove a person from the registry if thecriminal background check reveals any negative information;

(5) How a person obtains information from the registry; and

(6) Any other requirement necessary to implement theprovisions of this section.

The bill (Eng. Com. Sub. for H. B. No. 4062), as amended, wasthen ordered to third reading.

On motion of Senator Unger, the constitutional rule requiringa bill to be read on three separate days was suspended by a vote offour fifths of the members present, taken by yeas and nays.

The nays were: None.

Absent: K. Facemyer--1.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.4062) was then read a third time and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4062) passed with its title.

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

Eng. Com. Sub. for House Bill No. 4068, Providing that antiquemotor vehicles be valued at their salvage value for personalproperty tax purposes.

On second reading, coming up in regular order, was read asecond time.

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

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

That §11-1C-5 of the Code of West Virginia, 1931, as amended,be amended and reenacted; and that said code be amended by addingthereto a new section, designated §11-1C-5c, all to read asfollows:

ARTICLE 1C. FAIR AND EQUITABLE PROPERTY VALUATION.

§11-1C-5. Tax commissioner powers and duties.

(a) In addition to the powers and duties of the TaxCommissioner in other provisions of this article and this code, theTax Commissioner shall have the power and duty to:

(1) Perform such duties and exercise such powers as may benecessary to accomplish the purposes of this article;

(2) Determine the methods of valuation for both real andpersonal property in accordance with the following:

(A) As to personal property, the Tax Commissioner shallprovide a method to appraise each major specie of personal propertyin the state so that all such items of personal property are valuedin the same manner no matter where situated in the state, shalltransmit these methods to each county assessor who shall use thesemethods to value the various species of personal property. The TaxCommissioner shall periodically conduct such studies as arenecessary to determine that such methods are being followed. Suchmethod shall be in accordance with the provisions of article fiveof this chapter: Provided, That notwithstanding any otherprovision of this code to the contrary, the several all countyassessors shall appraise motor vehicles as follows: The State TaxCommissioner shall annually compile a schedule of automobile valuesbased upon the lowest values shown in a nationally accepted usedcar guide, which said schedule shall be furnished to each assessorand shall be used by the several all county assessors to determinethe assessed value for all motor vehicles in an amount equal tosixty percent of said the lowest values or sixty percent of $700,whichever is higher.

(B) As to managed timberland as defined in section two of thisarticle, the Tax Commissioner shall provide a method to appraisesuch property in the state so that all such property is valued inthe same manner no matter where it is situated in the state, whichshall be a valuation based on its use and productive potential asmanaged timberland, which may be accorded special valuation asforestlands as authorized by section fifty-three, article six ofthe Constitution of West Virginia: Provided, That timberland thatdoes not qualify for identification as managed timberland shall bevalued at market value: Provided, however, That the TaxCommissioner may not implement any rules or regulations in titleone hundred ten, which relate to valuation or classification oftimberland: Provided further, That on or before October 1, 1990,the Tax Commissioner shall, in accordance with chapter twenty-nine-a of this code, promulgate new rules relating to the valuation andclassification of timberland.

(C) As to farmland used, occupied and cultivated by an owneror bona fide tenant, the Tax Commissioner shall provide a method toappraise such property in the state so that all such property isvalued in the same manner no matter where it is situated in thestate, which valuation shall be arrived at according to the fairand reasonable value of the property for the purpose for which itis actually used regardless of what the value of the property wouldbe if used for some other purpose, in accordance with section one,article three of this chapter and as authorized by subsection B,section one-b, article X of the Constitution of West Virginia.

(D) As to public utility property, the Tax Commissioner shallprescribe appropriate methods for the appraisal of the varioustypes of property subject to taxation as public utilities and thetypes of property which are to be included in the operatingproperty of a public utility and thereby not subject to taxation bythe county assessor. Only parcels or other property, or portionsthereof, which are an integral part of the public utility'sfunction as a utility shall be included as operating property andassessed by the board of public works under provisions of articlesix of this chapter;

(3) Evaluate the performance of each assessor based upon thecriteria established by the commission and each county's approvedplan and take appropriate measures to require any assessor who doesnot meet these criteria or adequately carry out the provisions ofthe plan to correct any deficiencies. Such evaluation shallinclude the periodic review of the progress of each assessor inconducting the appraisals required in sections seven and nine ofthis article and in following the approved valuation plan. If theTax Commissioner determines that an assessor has substantiallyfailed to perform the duties required by said sections, the TaxCommissioner shall take all necessary steps, including theappointment of one or more special assessors in accordance with theprovisions of section one, article three of this chapter, orutilize such other authority as the commissioner has over countyassessors pursuant to other provisions of this code as may benecessary to complete the tasks and duties imposed by this article:Provided, That a writ of mandamus shall be the appropriate remedyif the Tax Commissioner fails to perform his or her statutory dutyprovided for in section five, article one of this chapter.

(4) Submit to the Legislature, on or before February 15 ofeach year, a preliminary statewide aggregate tax revenue projectionand other information which shall assist the Legislature in itsdeliberations regarding county board of education levy ratespursuant to section six-f, article eight of this chapter, whichinformation shall include any amount of reduction required by saidsection six-f;

(5) Maintain the valuations each year by making or causing tobe made such surveys, examinations, audits and investigations ofthe value of the several classes of property in each county whichshould be listed and taxed under the several classifications; and

(6) Establish by uniform rules a procedure for the sale ofcomputer generated material and appraisal manuals. Any fundsreceived as a result of the sale of such reproductions shall bedeposited to the appropriate account from which the payment forreproduction is made.

(b) The Tax Commissioner may adopt any regulation adoptedprior to January 1, 1990, pursuant to article one-a of thischapter, which adoption shall not constitute an implementation ofthe statewide mass reappraisal of property. Such adoption,including context modifications made necessary by the enactment ofthis article, shall occur on or before July 1, 1991, throughinclusion in the plan required by section ten of this article orinclusion in the minute record of the valuation commission. Uponthe adoption of any such regulations, any modification or repeal ofsuch regulation shall be in accordance with the provisions ofarticle three, chapter twenty-nine-a of this code.

§11-1C-5c. Antique motor vehicle valuation for personal propertytax purposes.

Notwithstanding any other provision of this code to thecontrary, any vehicle that is registered as an antique motorvehicle as defined in section three-a, article ten, chapterseventeen-a of this code and that is not used for generaltransportation shall be assigned an assessed value of $5,000 forpurposes of ad valorem property taxes.

Thereafter, on motion of Senator Unger, the Senatereconsidered the vote by which it immediately hereinbefore adoptedthe Finance committee amendment to Engrossed Committee Substitutefor House Bill No. 4068.

The vote thereon having been reconsidered,

The question again being on the adoption of the Financecommittee amendment to the bill.

Thereafter, at the request of Senator Prezioso, as chair ofthe Committee on Finance, and by unanimous consent, the Financecommittee amendment to the bill was withdrawn.

At the request of Senator Beach, as chair of the Committee onTransportation and Infrastructure, unanimous consent being granted,the unreported Transportation and Infrastructure committeeamendment to the bill was withdrawn.

The following amendment to Engrossed Committee Substitute forHouse Bill No. 4068, from the Committee on Finance, was againreported by the Clerk:

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

That §11-1C-5 of the Code of West Virginia, 1931, as amended,be amended and reenacted; and that said code be amended by addingthereto a new section, designated §11-1C-5c, all to read asfollows:

ARTICLE 1C. FAIR AND EQUITABLE PROPERTY VALUATION.

§11-1C-5. Tax commissioner powers and duties.

(a) In addition to the powers and duties of the TaxCommissioner in other provisions of this article and this code, theTax Commissioner shall have the power and duty to:

(1) Perform such duties and exercise such powers as may benecessary to accomplish the purposes of this article;

(2) Determine the methods of valuation for both real andpersonal property in accordance with the following:

§11-1C-5c. Antique motor vehicle valuation for personal propertytax purposes.

The question being on the adoption of the Finance committeeamendment to the bill (Eng. Com. Sub. for H. B. No. 4068), and onthis question, Senator Barnes demanded the yeas the nays.

On this question, the yeas were: Beach, Boley, Browning,Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Helmick,Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo,Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells,Williams, Wills, Yost and Kessler (Mr. President)--30.

The nays were: Barnes, Kirkendoll and Sypolt--3.

Absent: K. Facemyer

So, a majority of those present and voting having voted in theaffirmative, the President declared the Finance committee amendmentto the bill adopted.

The bill (Eng. Com. Sub. for H. B. No. 4068), as amended, wasthen ordered to third reading.

On motion of Senator Unger, the constitutional rule requiringa bill to be read on three separate days was suspended by a vote offour fifths of the members present, taken by yeas and nays.

On suspending the constitutional rule, the yeas were: Beach,Boley, Browning, Chafin, D. Facemire, Fanning, Foster, Green, Hall,Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller,Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler(Mr. President)--31.

The nays were: Barnes and Edgell--2.

Absent: K. Facemyer.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.4068) was then read a third time and put upon its passage.

On the passage of the bill, the yeas were: Beach, Boley,Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Green,Hall, Helmick, Jenkins, Laird, McCabe, Miller, Minard, Nohe,Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger,Wells, Wills, Yost and Kessler (Mr. President)--28.

The nays were: Barnes, Kirkendoll, Klempa, Sypolt andWilliams--5.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4068) passed.

At the request of Senator Beach, as chair of the Committee onTransportation and Infrastructure, and by unanimous consent, theunreported Transportation and Infrastructure committee amendment tothe title of the bill was withdrawn.

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

Eng. Com. Sub. for House Bill No. 4068--A Bill to amend andreenact §11-1C-5 of the Code of West Virginia, 1931, as amended;and to amend said code by adding thereto a new section, designated§11-1C-5c, all relating to appraisal value of certain motorvehicles for purposes of ad valorem property taxes; providing thatthe minimum appraised value of a motor vehicle is $700 for purposesof ad valorem property taxes; and providing that the appraisedvalue of an antique motor vehicle is $5,000 for purposes of advalorem property taxes.

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

On this question, the yeas were: Beach, Boley, Browning,Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Hall, Helmick,Jenkins, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale,Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Wills, Yost andKessler (Mr. President)--28.

The nays were: Barnes, Kirkendoll, Klempa, Sypolt andWilliams--5.

Absent: K. Facemyer--1.

So, two thirds of all the members elected to the Senate havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4068) takes effect July 1, 2012.

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

Pending announcement of a meeting of a standing committee ofthe Senate,

On motion of Senator Unger, the Senate recessed until 2:45p.m. today.

Upon expiration of the recess, the Senate reconvened and, atthe request of Senator Unger, unanimous consent being granted,returned to the fifth order of business.

Filed Conference Committee Reports

The Clerk announced the following conference committee reporthad been filed at 3:00 p.m. today:

Eng. Com. Sub. for House Bill No. 4236, Relating to exclusionsfrom the definition of professional personnel for evaluationpurposes.

The Senate again proceeded to the ninth order of business, thenext bill coming up in numerical sequence being,

Eng. House Bill No. 4072, Eliminating requirement for countyboards of education to meet on the first Monday of July.

On second reading, coming up in regular order, was read asecond time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4118, Including thesurviving spouse and a designated individual previously chosen bythe deceased as a person who may designate the manner ofdisposition of a deceased person's body.

On second reading, coming up in regular order, was read asecond time.

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

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

That §30-6-3 and §30-6-22 of the Code of West Virginia, 1931,as amended, be amended and reenacted; that said code be amended byadding thereto a new section designated §30-6-22a; and that §61-12-9 of said code be amended and reenacted, all to read as follows:

CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 6. BOARD OF FUNERAL SERVICE EXAMINERS.

§30-6-3. Definitions.

As used in this article, the following words and terms havethe following meanings, unless the context clearly indicatesotherwise:

(a) “Apprentice” means a person who is preparing to become alicensed funeral director and embalmer and is learning the practiceof embalming, funeral directing or cremation under the directsupervision and personal instruction of a duly licensed embalmer orfuneral director.

(b) “Authorized representative” means a person legallyauthorized or entitled to order the cremation of the deceased, asestablished by rule. An authorized representative may include inthe following order of precedence:

(1) The deceased, who has expressed his or her wishesregarding the disposal of their remains through a last will andtestament, an advance directive or preneed funeral contract, asdefined in section two, article fourteen, chapter forty-five ofthis code;

(2) The surviving spouse of the deceased, unless a petition todissolve the marriage was pending at the time of decedent’s death;

(3) An individual previously designated by the deceased as theperson with the right to control disposition of the deceased’sremains in a writing signed and notarized by the deceased: Provided, That no person may be designated to serve in suchcapacity for more than one nonrelative at any one time;

(2) (4) The deceased’s next of kin;

(3) (5) A court order;

(4) (6) A public official who is charged with arranging thefinal disposition of an indigent deceased; or

(5) (7) A representative of an institution who is charged witharranging the final disposition of a deceased who donated his orher body to science.

(d) “Certificate” means a certification by the board to be acrematory operator.

(e) “Courtesy card holder” means a person who only practicesfuneral directing periodically in West Virginia and is a licensedembalmer and funeral director in a state which borders WestVirginia.

(f) “Cremated remains” or “cremains” means all human remains,including foreign matter cremated with the human, recovered afterthe completion of cremation.

(g) “Cremation” means the mechanical or thermal processwhereby a dead human body is reduced to ashes and bone fragmentsand then further reduced by additional pulverization, burning orrecremating when necessary.

(h) “Crematory” means a licensed place of business where adeceased human body is reduced to ashes and bone fragments andincludes a crematory that stands alone or is part of or associatedwith a funeral establishment.

(i) “Crematory operator” means a person certified by the boardto operate a crematory.

(j) “Crematory operator in charge” means a certified crematoryoperator who accepts responsibility for the operation of acrematory.

(k) “Deceased” means a dead human being for which a deathcertificate is required.

(l) “Embalmer” means a person licensed to practice embalming.

(m) “Embalming” means the practice of introducing chemicalsubstances, fluids or gases used for the purpose of preservation ordisinfection into the vascular system or hollow organs of a deadhuman body by arterial or hypodermic injection for the restorationof the physical appearance of a deceased.

(n) “Funeral” means a service, ceremony or rites performed forthe deceased with a body present.

(o) “Funeral directing” means the business of engaging in thefollowing:

(1) The shelter, custody or care of a deceased;

(2) The preparation of a deceased for burial or otherdisposition;

(3) The arranging or supervising of a funeral or memorialservice for a deceased; and

(4) The maintenance of a funeral establishment for thepreparation, care or disposition of a deceased.

(p) “Funeral director” means a person licensed to practicefuneral directing.

(q) “Funeral establishment” means a licensed place of businessdevoted to: the care, preparation and arrangements for thetransporting, embalming, funeral, burial or other disposition of adeceased. A funeral establishment can include a licensedcrematory.

(r) “Funeral service licensee” means a person licensed afterJuly 1, 2003, to practice embalming and funeral directing.

(s) “License” means a license, which is not transferable orassignable, to:

(1) Practice embalming and funeral directing;

(2) Operate a crematory or a funeral establishment.

(t) “Licensee” means a person holding a license issued underthe provisions of this article.

(u) “Licensee in charge” means a licensed embalmer and funeraldirector who accepts responsibility for the operation of a funeralestablishment.

(v) “Memorial service” means a service, ceremony or ritesperformed for the deceased without a body present.

(w) “Mortuary” means a licensed place of business devotedsolely to the shelter, care and embalming of the deceased.

(x) “Person” means an individual, partnership, association,corporation, not-for-profit organization or any other organization.

(y) “Registration” means a registration issued by the board tobe an apprentice to learn the practice of embalming, funeraldirecting or cremation.

(z) “State” means the State of West Virginia.

§30-6-22. Disposition of body of deceased person; penalty.

(a) No public officer, employee, physician or surgeon, orother person having a professional relationship with the deceased,shall send, or cause to be sent to an embalmer, funeral director orcrematory operator the body of a deceased without first inquiringthe desires of the next of kin; or any person who may be chargeablewith the funeral expenses of the deceased. deceased who hasdesignated his or her wishes regarding the disposal of theirremains through a last will and testament, an advance directive orpreneed funeral contract, as defined in section two, articlefourteen, chapter forty-five of this code; the surviving spouse ofthe deceased, unless a petition to dissolve the marriage waspending at the time of decedent’s death; and, an individualpreviously designated by the deceased as the person with the rightto control disposition of the deceased’s remains in a writingsigned and notarized by the deceased: Provided, That no person maybe designated to serve in such capacity for more than onenonrelative at any one time. If next of kin or person can befound, his or her authority and direction there is no last will anstestament, advance directive or preneed funeral contract, survivingspouse, or designated person, then the authority and direction ofany next of kin or person who may be chargeable with the funeralexpenses of the deceased shall be used as to the disposal of thebody of the deceased. The provisions of this subsection are notapplicable if the remains of the decedent are subject todisposition pursuant to subsection (b) of this section.

(b) Notwithstanding any provision of this code to thecontrary, a United States Department of Defense Record of EmergencyData Form (DD Form 93) executed by a declarant who dies whileserving in a branch of the United States Military as defined in 10U. S. C. §1481 constitutes a valid form of declaration instrumentand governs the disposition of the declarant’s remains. The personnamed in the form as the person authorized to direct disposition ofthe remains may arrange for the final disposition of thedeclarant’s last remains.

(c) Any person who violates the provisions of this section isguilty of a misdemeanor and, upon conviction thereof, shall befined not less than $500, nor more than $1,000, or imprisoned notless than ten days nor more than ninety days, or both.

§30-6-22a. Right of disposition; preneed contract; affidavit ondisposition of remains; role of county commission; liabilityof funeral home.

(a) Notwithstanding section twenty-two of this article, aperson who is eighteen years of age or older and of sound mind, byentering into a preneed funeral contract, as defined in sectiontwo, article fourteen, chapter forty-seven of this code, may directthe location, manner and conditions of the disposition of theperson's remains and the arrangements for funeral goods andservices to be provided upon the person's death. The dispositiondirections and funeral prearrangements that are contained in apreneed funeral contract are not subject to cancellation torevision unless any resources set aside to fund the preneed funeralcontract are insufficient under the terms of the preneed funeralcontract to carry out the disposition directions and funeralprearrangements contained in the contract.

(b) As to any matter not addressed in a preneed funeralcontract as described in subsection (a) of this section and exceptas provided in subsection (c) of this section, the right to controlthe disposition of the remains of a deceased person, the location,manner and conditions of disposition, and arrangements for funeralgoods and services to be provided vests in the following, in theorder named, provided that the person is eighteen years or olderand is of sound mind:

(1)(A) A person designated by the decedent as the person withthe right to control the disposition in an affidavit executed inaccordance with paragraph (B) of this subdivision; and

(B) A person who is eighteen years of age or older and ofsound mind wishing to authorize another person to control thedisposition of his or her remains may execute an affidavit beforea notary public in substantially the following form:

“I, ________________, do hereby designate ___________________with the right to control the disposition of my remains upon mydeath. I ___ have/____ have not attached specific directionsconcerning the disposition of my remains with which the designeeshall substantially comply, provided that these directions arelawful and there are sufficient resources in my estate to carry outthe directions.

______________________________

Signed

State of _______________

County of ______________

I, _________________________, a Notary Public of said County,do certify that _____________________________________, as principalwhose name is signed to the writing above bearing date on the______ day of _________, 20____, has this day acknowledged the samebefore me.

Given under my hand this ______ day of ______, 20__.

My commission expires:_______________________________

____________________________

Notary Public”;

(2) The surviving spouse of the decedent;

(3) The sole surviving child of the decedent or, if there ismore than one child of the decedent, the majority of the survivingchildren. However, less than one half of the surviving childrenshall be vested with the rights under this section if they haveused reasonable efforts to notify all other surviving children oftheir instructions and are not aware of any opposition to thoseinstructions on the part of more than one half of all survivingchildren;

(4) The surviving parent or parents of the decedent. If oneof the surviving parents is absent, the remaining parent shall bevested with the rights and duties under this section afterreasonable efforts have been unsuccessful in locating the absentsurviving parent;

(5) The surviving brother or sister of the decedent or, ifthere is more than one sibling of the decedent, the majority of thesurviving siblings. However, less than the majority of survivingsiblings shall be vested with the rights and duties under thissection if they have used reasonable efforts to notify all othersurviving siblings of their instructions and are not aware of anyopposition to those instructions on the part of more than one halfof all surviving siblings;

(6) The surviving grandparent of the decedent or, if there ismore than one surviving grandparent, the majority of thegrandparents. However, less than the majority of the survivinggrandparents shall be vested with the rights and duties under thissection if they have used reasonable efforts to notify all othersurviving grandparents of their instructions and are not aware ofany opposition to those instructions on the part of more than onehalf of all surviving grandparents;

(7) The guardian of the person of the decedent at the time ofthe decedent's death if one had been appointed;

(8) The personal representative of the estate of the decedent;

(9) The person in the classes of the next degree of kinship,in descending order, under the laws of descent and distribution toinherit the estate of the decedent. If there is more than oneperson of the same degree, any person of that degree may exercisethe right of disposition;

(10) If the disposition of the remains of the decedent is theresponsibility of the state or a political subdivision of thestate, the public officer, administrator or employee responsiblefor arranging the final disposition of decedent's remains; or

(11) In the absence of any person under subdivisions (1)through (10) of this subsection, any other person willing to assumethe responsibilities to act and arrange the final disposition ofthe decedent's remains, including the funeral director with custodyof the body, after attesting in writing that a good-faith efforthas been made to no avail to contact the individuals undersubdivisions (1) through (10) of this subsection.

(c) A person entitled under law to the right of dispositionforfeits that right, and the right is passed on to the nextqualifying person as listed in subsection (b) of this section, inthe following circ*mstances:

(1) Any person charged with murder or voluntary manslaughterin connection with the decedent's death and whose charges are knownto the funeral director. However, if the charges against thatperson are dismissed or if the person is acquitted of the charges,the right of disposition is returned to the person;

(2) Any person who does not exercise his or her right ofdisposition within two days of notification of the death ofdecedent or within three days of decedent's death, whichever isearlier;

(3) If the person and the decedent are spouses and a petitionto dissolve the marriage was pending at the time of decedent'sdeath.

(d) Any person signing a funeral service agreement, cremationauthorization form or any other authorization for disposition shallbe deemed to warrant the truthfulness of any facts set forththerein, including the identity of the decedent whose remains areto be buried, cremated or otherwise disposed of, and the party'sauthority to order the disposition. A funeral home has the rightto rely on that funeral service agreement or authorization andshall have the authority to carry out the instructions of theperson or persons the funeral home reasonably believes holds theright of disposition. The funeral home has no responsibility toindependently investigate the existence of any next of kin orrelative of the decedent where a means of disposition is fully setforth in a preneed funeral contract or other written directive ofthe deceased in accordance with this section. If there is morethan one person in a class who are equal in priority and thefuneral home has no knowledge of any objection by other members ofthat class, the funeral home may rely on and act according to theinstructions of the first person in the class to make funeral anddisposition arrangements, if no other person in that class provideswritten objections to the funeral home.

(e) No funeral establishment or funeral director who relies ingood faith upon the instructions of a preneed funeral contract,written directive of the deceased, or an individual claiming theright of disposition in accordance with this section shall besubject to criminal or civil liability or subject to disciplinaryaction under this section for carrying out the disposition of theremains in accordance with those instructions.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 12. POSTMORTEM EXAMINATIONS.

§61-12-9. Permits required for cremation; fee.

(a) It is the duty of any person cremating, or causing orrequesting the cremation of, the body of any dead person who diedin this state, to secure a permit for the cremation from the ChiefMedical Examiner, the county medical examiner or county coroner ofthe county wherein the death occurred. Any person who willfullyfails to secure a permit for a cremation, is guilty of amisdemeanor and, upon conviction thereof, shall be fined not lessthan $200. A permit for cremation shall be acted upon by the ChiefMedical Examiner, the county medical examiner or the county coronerafter review of the circ*mstances surrounding the death, asindicated by the death certificate. The person requesting issuanceof a permit for cremation shall pay a reasonable fee, as determinedby the Chief Medical Examiner, to the county medical examiner orcoroner or to the Office of the Chief Medical Examiner, asappropriate, for issuance of the permit.

(b) Any person operating a crematory who does not perform acremation pursuant to the terms of a cremation contract, orpursuant to the order of a court of competent jurisdiction, withinthe time contractually agreed upon, or, if the cremation contractdoes not specify a time period, within twenty-one days of receiptof the deceased person’s remains by the crematory, whichever timeis less, is guilty of a misdemeanor.

(c) Any person operating a crematory who fails to deliver thecremated remains of a deceased person, pursuant to the terms of acremation contract, or pursuant to the order of a court ofcompetent jurisdiction, within the time contractually agreed upon,or, if the cremation contract does not specify a time period,within thirty-five days of receipt of the deceased person’s remainsby the crematory, whichever time is less, is guilty of amisdemeanor.

(d) Any person convicted of a violation of the provisions ofsubsection (b) or (c) of this section shall be fined not less than$1,000 nor more than $5,000 or confined in the county or regionaljail for a period not to exceed six months, or both.

(e) In any criminal proceeding alleging that a person violatedthe time requirements of this section, it is a defense to thecharge that a delay beyond the time periods provided for in thissection were caused by circ*mstances wholly outside the control ofthe defendant.

(f) For purposes of this section, “cremation contract” meansan agreement to perform a cremation, as a “cremation” is defined insubsection (g), section three, article six, chapter thirty of thiscode. A cremation contract is an agreement between a crematory andany authorized person or entity, including, but not limited to, thefollowing persons in order of precedence:

(2) The surviving spouse of the deceased, unless a petition todissolve the marriage was pending at the time of decedent’s death;

(2) (4) The deceased person’s next of kin;

(3) (5) A public official charged with arranging the finaldisposition of an indigent deceased person or an unclaimed corpse;

(4) (6) A representative of an institution who is charged witharranging the final disposition of a deceased who donated his orher body to science;

(5) (7) A public officer required by statute to arrange thefinal disposition of a deceased person;

(6) (8) Another funeral establishment; or

(7) (9) An executor, administrator or other personalrepresentative of the deceased.

The bill (Eng. Com. Sub. for H. B. No. 4118), as amended, wasthen ordered to third reading.

On motion of Senator Unger, the constitutional rule requiringa bill to be read on three separate days was suspended by a vote offour fifths of the members present, taken by yeas and nays.

On suspending the constitutional rule, the yeas were: Barnes,Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Fanning,Foster, Green, Hall, Jenkins, Kirkendoll, Klempa, Laird, McCabe,Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost andKessler (Mr. President)--32.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.4118) was then read a third time and put upon its passage.

On the passage of the bill, the yeas were: Barnes, Beach,Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster,Green, Hall, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller,Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler(Mr. President)--32.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4118) passed.

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

Eng. Com. Sub. for House Bill No. 4118--A Bill to amend andreenact §30-6-3 and §30-6-22 of the Code of West Virginia, 1931, asamended; to amend said code by adding thereto a new sectiondesignated §30-6-22a; and to amend and reenact §61-12-9 of saidcode, all relating to cremation, preneed funeral contracts anddisposition of remains generally; adding a definition of personsauthorized to order cremation; clarifying required inquiry aboutdeceased’s desires; prioritizing individuals authorized to expressdesires of the deceased; clarifying funeral directorsresponsibilities; establishing the right to control the dispositionof the remains of a deceased person; determining who has thatright; setting forth how that right may be forfeited; adding adefinition of person authorized to agree to a cremation contract;and establishing an order of precedence among persons as tocremation and disposition of remains.

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

Eng. Com. Sub. for House Bill No. 4245, Permitting certainauxiliary lighting on motorcycles.

On second reading, coming up in regular order, was read asecond time.

The following amendments to the bill, from the Committee onTransportation and Infrastructure, were reported by the Clerk,considered simultaneously, and adopted:

On pages four through eight, by striking out all of sectionforty-four;

And,

By striking out the enacting section and substituting therefora new enacting section, to read as follows:

That §17C-15-23 of the Code of West Virginia, 1931, asamended, be amended and reenacted to read as follows:.

The bill (Eng. Com. Sub. for H. B. No. 4245), as amended, wasthen ordered to third reading.

On motion of Senator Unger, the constitutional rule requiringa bill to be read on three separate days was suspended by a vote offour fifths of the members present, taken by yeas and nays.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.4245) was then read a third time and put upon its passage.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4245) passed.

The following amendment to the title of the bill, from theCommittee on Transportation and Infrastructure, was reported by theClerk and adopted:

Eng. Com. Sub. for House Bill No. 4245--A Bill to amend andreenact §17C-15-23 of the Code of West Virginia, 1931, as amended,relating to lighting equipment; and permitting certain auxiliarylighting on motorcycles.

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

Eng. Com. Sub. for House Bill No. 4260, Relating to insurancecoverage for autism spectrum disorders.

On second reading, coming up in regular order, was read asecond time.

The following amendments to the bill, from the Committee onBanking and Insurance, were reported by the Clerk, consideredsimultaneously, and adopted:

On page nine, section seven, line one hundred eighteen, afterthe word “psychologist” by inserting the words “and in accordancewith a treatment plan developed from a comprehensive evaluation bya certified behavior analyst”;

On page sixteen, section six-e, line eleven, after the word“psychologist” by inserting the words “and in accordance with atreatment plan developed from a comprehensive evaluation by acertified behavior analyst”;

On page twenty-three, section three-v, line eleven, after theword “psychologist” by inserting the words “and in accordance witha treatment plan developed from a comprehensive evaluation by acertified behavior analyst”;

On page twenty-eight, section seven-k, line fourteen, afterthe word “psychologist” by inserting the words “and in accordancewith a treatment plan developed from a comprehensive evaluation bya certified behavior analyst”;

On page thirty-four, section eight-j, line fourteen, after theword “psychologist” by inserting the words “and in accordance witha treatment plan developed from a comprehensive evaluation by acertified behavior analyst”;

And,

On page thirty-seven, section eight-j, line fifty-three, bystriking out the word “board”.

The bill (Eng. Com. Sub. for H. B. No. 4260), as amended, wasthen ordered to third reading.

On motion of Senator Unger, the constitutional rule requiringa bill to be read on three separate days was suspended by a vote offour fifths of the members present, taken by yeas and nays.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.4260) was then read a third time and put upon its passage.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4260) passed with its title.

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

Eng. House Bill No. 4271, Reporting requirements forresidential mortgage lenders and broker licensees.

On second reading, coming up in regular order, was read asecond time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4310, Prohibiting sexoffenders from living or working within one thousand feet of theouter perimeter of a school, child care facility, playground or avictim's home.

On second reading, coming up in regular order, was read asecond time.

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

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

ARTICLE 12. PROBATION AND PAROLE.

§62-12-26. Extended supervision for certain sex offenders;sentencing; conditions; supervision provisions;supervision fee.

(a) Notwithstanding any other provision of this code to thecontrary, any defendant convicted after the effective date of thissection of a violation of section twelve, article eight, chaptersixty-one of this code or a felony violation of the provisions ofarticle eight-b, eight-c or eight-d of said that chapter shall, aspart of the sentence imposed at final disposition, be required toserve, in addition to any other penalty or condition imposed by thecourt, a period of supervised release of up to fifty years: Provided, That the period of supervised release imposed by thecourt pursuant to this section for a defendant convicted after theeffective date of this section as amended and reenacted during thefirst extraordinary session of the Legislature, 2006, of aviolation of section three or seven, article eight-b, chaptersixty-one of this code and sentenced pursuant to section nine-a ofsaid that article, shall be no less than ten years: Provided,however, That a defendant designated after the effective date ofthis section as amended and reenacted during the firstextraordinary session of the Legislature, 2006, as a sexuallyviolent predator pursuant to the provisions of section two-a,article twelve, chapter fifteen of this code shall be subject, inaddition to any other penalty or condition imposed by the court, tosupervised release for life: Provided further, That pursuant tothe provisions of subsection (g) of this section, a court maymodify, terminate or revoke any term of supervised release imposedpursuant to subsection (a) of this section.

(b) Any person required to be on supervised release for aminimum term of ten years or for life pursuant to the provisos ofsubsection (a) of this section also determined by a court of thisor another jurisdiction to be a sexually violent predator or anyperson convicted of a felony sexual offense in this or anotherjurisdiction where the victim was twelve years of age or youngerand the perpetrator was 18 years of age or older at the time of theoffense shall be further prohibited from:

(1) Establishing a residence or accepting employment withinone thousand feet from the grounds of a school or child carefacility or within one thousand feet of the residence of a victimor victims of any sexually violent offenses for which the personwas convicted. For the purposes of this subdivision, “residence”includes the yard, grounds, and outbuildings surrounding theresidence which are part of the titled property; “child carefacility” includes the classrooms, buildings, playground areas,parking lots and common areas utilized by children while attendingthe child care facility;“school” means an educational facilitycomprised of one or more buildings including school grounds, usedby students during regular school hours or during any school-sponsored function or extracurricular activities; “school grounds”includes the land owned by the board of education on which a schoolis built together with such other school bond owned land used bystudents for play, recreation or athletic events while attendingschool.

(2) Establishing a residence or any other living accommodationin a household in which a child under sixteen resides if the personhas been convicted of a sexually violent offense against a child,unless the person is one of the following:

(i) (A) The child’s parent;

(ii) (B) The child’s grandparent; or

(iii) (C) The child’s stepparent and the person was thestepparent of the child prior to being convicted of a sexuallyviolent offense, the person’s parental rights to any children inthe home have not been terminated, the child is not a victim of asexually violent offense perpetrated by the person, and the courtdetermines that the person is not likely to cause harm to the childor children with whom such person will reside: Provided, Thatnothing in this subsection shall preclude a court from imposingresidency or employment restrictions as a condition of supervisedrelease on defendants other than those subject to the provision ofthis subsection.

(c) The period of supervised release imposed by the provisionsof this section shall begin upon the expiration of any period ofprobation, the expiration of any sentence of incarceration or theexpiration of any period of parole supervision imposed or requiredof the person so convicted, whichever expires later.

(d) Any person sentenced to a period of supervised releasepursuant to the provisions of this section shall be supervised bya multijudicial circuit probation officer, if available. Untilsuch time as a multijudicial circuit probation officer isavailable, the offender shall be supervised by the probation officeof the sentencing court or of the circuit in which he or sheresides.

(e) A defendant sentenced to a period of supervised releaseshall be subject to any or all of the conditions applicable to aperson placed upon probation pursuant to the provisions of sectionnine of this article: Provided, That any defendant sentenced to aperiod of supervised release pursuant to this section shall berequired to participate in appropriate offender treatment programsor counseling during the period of supervised release unless thecourt deems the offender treatment programs or counseling to nolonger be appropriate or necessary and makes express findings insupport thereof.

Within ninety days of the effective date of this section asamended and reenacted during the first extraordinary session of theLegislature, 2006, the Secretary of the Department of Health andHuman Resources shall propose rules and emergency rules forlegislative approval in accordance with the provisions of articlethree, chapter twenty-nine-a of this code establishingqualifications for sex offender treatment programs and counselorsbased on accepted treatment protocols among licensed mental healthprofessionals.

(f) The sentencing court may, based upon defendant's abilityto pay, impose a supervision fee to offset the cost of supervision. Said fee shall not exceed $50 per month. Said fee may be modifiedperiodically based upon the defendant's ability to pay.

(g) Modification of conditions or revocation. -- The courtmay:

(1) Terminate a term of supervised release and discharge thedefendant released at any time after the expiration of two years ofsupervised release, pursuant to the provisions of the West VirginiaRules of Criminal Procedure relating to the modification ofprobation, if it is satisfied that such action is warranted by theconduct of the defendant released and the interests of justice;

(2) Extend a period of supervised release if less than themaximum authorized period was previously imposed or modify, reduceor enlarge the conditions of supervised release, at any time priorto the expiration or termination of the term of supervised release,consistent with the provisions of the West Virginia Rules ofCriminal Procedure relating to the modification of probation andthe provisions applicable to the initial setting of the terms andconditions of post-release supervision;

(3) Revoke a term of supervised release and require thedefendant to serve in prison all or part of the term of supervisedrelease without credit for time previously served on supervisedrelease if the court, pursuant to the West Virginia Rules ofCriminal Procedure applicable to revocation of probation, finds byclear and convincing evidence that the defendant violated acondition of supervised release, except that a defendant whose termis revoked under this subdivision may not be required to serve morethan the period of supervised release;

(4) Order the defendant to remain at his or her place ofresidence during nonworking hours and, if the court so directs, tohave compliance monitored by telephone or electronic signalingdevices, except that an order under this paragraph may be imposedonly as an alternative to incarceration.

(h) Written statement of conditions. -- The court shall directthat the probation officer provide the defendant with a writtenstatement at the defendant's sentencing hearing that sets forth allthe conditions to which the term of supervised release is subjectand that it is sufficiently clear and specific to serve as a guidefor the defendant's conduct and for such supervision as isrequired.

(i) Supervised release following revocation. -- When a term ofsupervised release is revoked and the defendant is required toserve a term of imprisonment that is less than the maximum term ofsupervised release authorized under subsection (a) of this section,the court may include a requirement that the defendant be placed ona term of supervised release after imprisonment. The length ofsuch term of supervised release shall not exceed the term ofsupervised release authorized by this section less any term ofimprisonment that was imposed upon revocation of supervisedrelease.

(j) Delayed revocation. -- The power of the court to revoke aterm of supervised release for violation of a condition ofsupervised release and to order the defendant to serve a term ofimprisonment and, subject to the limitations in subsection (i) ofthis section, a further term of supervised release extends beyondthe expiration of the term of supervised release for any periodnecessary for the adjudication of matters arising before itsexpiration if, before its expiration, a warrant or summons has beenissued on the basis of an allegation of such a violation.

(k) The amendment to subsection (b) of this section enactedduring the 2012 regular session of the Legislature shall apply onlyto residences of offenders established after the effective date ofthe amendments.

The bill (Eng. Com. Sub. for H. B. No. 4310), as amended, wasthen ordered to third reading.

On motion of Senator Unger, the constitutional rule requiringa bill to be read on three separate days was suspended by a vote offour fifths of the members present, taken by yeas and nays.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.4310) was then read a third time and put upon its passage.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4310) passed.

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

Eng. Com. Sub. for House Bill No. 4310--A Bill to amend andreenact §62-12-26 of the Code of West Virginia, 1931, as amended,relating to limitations and restrictions placed on sex offenderswho have been adjudicated sexually violent predator or convicted ofa sexual offense against a child twelve years of age or younger;and clarifying the statutory restrictions against such personsliving or working within one thousand feet of a school, child carefacility or residence of a former victim; defining terms.

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

Eng. House Bill No. 4314, Relating to the appointment ofmagistrates.

On second reading, coming up in regular order, was read asecond time and ordered to third reading.

Eng. House Bill No. 4322, Adding coyote and fox to the list ofspecies in which any color artificial light is permitted forhunting at night.

On second reading, coming up in regular order, was read asecond time and ordered to third reading.

Eng. House Bill No. 4328, Removing bobcats from the list ofspecies requiring a field tag.

On second reading, coming up in regular order, was read asecond time and ordered to third reading.

Eng. Com. Sub. for House Bill No. 4396, West Virginia Fire,EMS and Law-Enforcement Officer Survivor Benefit Act.

On second reading, coming up in regular order, was reported bythe Clerk.

At the request of Senator Palumbo, and by unanimous consent,further consideration of the bill was deferred until the conclusionof bills on today's second reading calendar.

Eng. Com. Sub. for House Bill No. 4451, Ensuring that countyexecutive committees have control of designating the persons whoserve as ballot commissioner.

On second reading, coming up in regular order, was read asecond time.

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

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

ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.

§3-1-19. Ballot commissioners; selection; duties generally;vacancies.

(a) In each county in the state, the Board of BallotCommissioners shall be comprised of:

(1) The clerk of the county commission while holding office;and two

(2) Two other persons appointed by him or her one from each ofthe two political parties which cast the largest and second largestnumber of votes in the state at the last preceding general electionshall constitute a board of ballot commissioners as follows:

(A) One person appointed by the county executive committee ofthe political party that cast the largest number of votes in thestate at the last preceding general election; and

(B) One person appointed by the county executive committee ofthe political party that cast the second largest number of votes inthe state at the last preceding general election.

(b) If the county executive committees do not make theappointments in a timely manner, then the county clerk shall makethe appointments.

(d) It shall be the duty of the county clerk to notify thechairman of the respective county executive committees of the twoparties, at least five days before the time of the making of theappointments. the time and place of making the appointments

(e) If at any time after notice is given, and before or on theday so fixed for making appointments, the chairman of each of thecommittees shall designate, in writing, a member of such his or herparty as ballot commissioner. Each designee shall be appointed ifhe or she meets the qualifications of a voter: Provided, That aballot commissioner cannot be a candidate for any office in anyelection held during the time he or she is serving as ballotcommissioner.

(f) Ballot commissioners shall be appointed between thefifteenth and thirtieth days of January, in each year in which ageneral election is to be held, for a term of two years beginningon February 1 next ensuing. They shall perform the duties of

(g) The ballot commissioners shall perform their duties at allgeneral, special and primary elections held in the county or anymagisterial district thereof during their term of office.

(h) A vacancy shall be filled in the same manner as anoriginal appointment, but immediate notice of a vacancy shall,where necessary, be deemed compliance with the five-day noticeprovision.

The bill (Eng. Com. Sub. for H. B. No. 4451), as amended, wasthen ordered to third reading.

On motion of Senator Unger, the constitutional rule requiringa bill to be read on three separate days was suspended by a vote offour fifths of the members present, taken by yeas and nays.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.4451) was then read a third time and put upon its passage.

The nays were: None.

Absent: K. Facemyer and Helmick--2.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4451) passed with its title.

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

Eng. Com. Sub. for House Bill No. 4486, Relating to thedisclosure of insurance coverage.

On second reading, coming up in regular order, was read asecond time.

The following amendment to the bill, from the Committee on theJudiciary, was reported by the Clerk:

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

That the Code of West Virginia, 1931, as amended, be amended

by adding thereto a new section, designated §33-6F-2, to read asfollows:

ARTICLE 6F. DISCLOSURE OF NONPUBLIC PERSONAL INFORMATION.

§33-6F-2. Disclosure of certain insurance information required.

Notwithstanding the provisions of section one, article six-f,of this chapter:

(a) Each insurer that may provide personal lines liabilityinsurance coverage as that term is defined in section nine, articletwelve of this chapter to pay all or a portion of a claim assertedagainst an insurance policy insuring a motor vehicle shall provide,within thirty days of its receipt of a written request from aclaimant’s attorney who has given written notice that he or sherepresents the claimant: (1) A response providing the followinginformation relating to each of the insurer’s known policies ofinsurance, including excess or umbrella insurance, which does ormay provide liability coverage for the claim:

(A) The name of the insurer;

(B) The name of each named insured of the subject policy; and

(C) The limits of any motor vehicle liability insurance policyat the time of the events that are the subject of the claim; or

(2) The declarations page of any motor vehicle liabilitypolicy applicable at the time of the events that are the subject ofthe claim, appropriately redacted to comply with applicable privacylaws or regulations;

(b) Any written request by the claimant’s attorney under thissection must include: (1) The date and location of the events thatare the subject of the claim; (2) the name and, if known, the lastknown address of the insured; (3) a copy of the accident orincident report, if any; (4) the insurer’s claim number;(5) a goodfaith estimate and documentation of all of the claimant’s medicalexpenses if any and any wage loss documentation as of the date ofthe request, if any; and (6) documentation as of the date of therequest of any and all property damage.

(c) Disclosure of the information required by subsection (a)of this section shall not constitute an admission that the allegedinjury or damage is subject to the policy, nor shall suchdisclosure waive any reservation of rights an insurer may have.

(d) No information disclosed by any party pursuant to thissection shall be, by reason of such disclosure, admissible asevidence at trial.

(e) An insurer’s compliance with this section does notconstitute a violation of this article, or subsection twelve,section four, article six of this chapter.

(f) An insurer that fails to comply with this section issubject to a penalty of five hundred dollars, plus reasonableattorneys’ fees and expenses incurred in obtaining disclosure ofthe information required by subsection (a) of this section. Thispenalty is the sole and exclusive remedy for an insurer’s failureto comply with this section.

On motion of Senator Palumbo, the following amendment to theJudiciary committee amendment to the bill (Eng. Com. Sub. for H. B.No. 4486) was reported by the Clerk and adopted:

On page two, section two, subdivision (e), by striking out thewords “section four” and inserting in lieu thereof the words“section eleven”.

The question now being on the adoption of the Judiciarycommittee amendment to the bill, as amended, the same was put andprevailed.

The bill (Eng. Com. Sub. for H. B. No. 4486), as amended, wasthen ordered to third reading.

Eng. Com. Sub. for House Bill No. 4511, Creating the ShaleResearch, Education, Policy and Economic Development Center at WestVirginia University.

On second reading, coming up in regular order, was read asecond time.

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

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

That the Code of West Virginia, 1931, as amended, be amendedby adding thereto a new article, designated §18B-11C-1, §18B-11C-2and §18B-11C-3; that said code be amended by adding thereto a newarticle, designated §18B-11D-1, §18B-11D-2, §18B-11D-3, §18B-11D-4,§18B-11D-5 and §18B-11D-6, all to read as follows:

ARTICLE 11C. COLLEGE AND UNIVERSITY CENTERS AND INSTITUTES.

§18B-11C-1. Findings and purposes; legislative intent.

(a) The Legislature finds that it is in the best interests ofthe citizens of West Virginia for state institutions of highereducation to function within the bounds of the state-establishedaccountability system pursuant to article one-d of this chapter andto focus their research efforts diligently on achieving the goalsand objectives set forth therein and in their institutionalcompacts developed pursuant to section seven, article one-d of thischapter.

(b) The intent of the Legislature in enacting this article isto ensure that state institutions of higher education work towardfurthering the goals of accountability, effectiveness andefficiency articulated in the public policy agenda and stateaccountability system; to avoid unnecessary duplication of programdevelopment and delivery; to ensure that programs and services areclosely aligned with the mission and approved compact of theinstitution; and to address the public policy agenda establishedpursuant to section one of this article.

§18B-11C-2. Definition; creation of centers; commission approvalrequired; criteria.

(a) For the purposes of this article and article eleven-d ofthis chapter, “center” means an entity or program, created by astate institution of higher education with a distinct mission in aspecific area of research and includes “research centers”,“research institutes” and “centers of excellence”. A centerconsists of an academic team whose stated purposes are to promotecollaboration and best practices in the targeted research area, tofurther new developments and innovative ways of working and toachieve high quality research results.

(b) Beginning with the effective date of this article, thegoverning board of a state institution of higher education underthe jurisdiction of the commission may not create a college oruniversity center as defined in subsection (a) of this section,regardless of the title by which the center is designated, until itfirst has met the criteria set forth in this section.

(c) Before a governing board of a state institution of highereducation creates a new center, it must evaluate and approve thefollowing:

(1) Center name and governance structure --

(A) The name of the proposed center and an outline showing howthe center will be governed and operate;

(B) The name of the director or names of co-directors and theprocess by which these individuals will be appointed; and

(2) Center mission and goals --

(A) The mission of the center showing how it differs in focusand scope from all other centers established at the institution;

(B) The need for the new center with supporting documentationdrawn from the institutional compact, mission statement, and publicpolicy agenda;

(C) Demonstration of how the center will contribute in uniqueways to expanding knowledge, generating new discoveries, andproviding positive societal impacts; and

(D) An explanation of why a new center is required to completethe planned research activities, including a description ofstrengths that establishing a center may bring to the institutionand the state of West Virginia.

(3) Staff and resources --

(A) The faculty, resources, facilities, and peripherals thatconstitute the center and the resources that will be dedicated tosupport of the center and its mission;

(B) Existence of a critical mass in the specific orinterdisciplinary area of research, including interdisciplinaryresearch activities that provide evidence of the potential forcollaboration of researchers within the center;

(C) The researchers, academic rank, department and expectedcontribution to the center to be made by each member, includingstrengths that the researchers bring to the center and a briefacademic biography of each researcher;

(D) A record of past funding and the potential for attractingexternal funding, including sources of potential funding to furtherthe goals of the center and make it self-supporting;

(E) Resources that have been secured from external sources anda rationale for resources requested from the state; and

(F) Documentation showing how the center’s distinct missionand organization eliminate unnecessary competition for resources,students and faculty within the state; drive economic development;generate talent; and create an energized, entrepreneurialenvironment that retains top quality graduates.

§18B-11C-3. Process for commission approval; rules required.

(a) The commission shall promulgate a rule pursuant to articlethree-a, chapter twenty-nine-a of this code setting forth theapproval process for proposed centers at state institutions ofhigher education. The rule shall incorporate and apply thecriteria established by this article.

(b) The commission shall review each proposal received from agoverning board and shall notify the governing board in writing ofits decision within sixty days of the date the commission receivedthe proposal. If the proposal is rejected, the commission shallinclude particulars of the deficiencies found in the proposal andshall outline steps the governing board may take to correct thedeficiencies before resubmitting the proposal.

ARTICLE 11D. SHALE RESEARCH, EDUCATION, POLICY AND ECONOMICDEVELOPMENT CENTER AT WEST VIRGINIA UNIVERSITY.

§18B-11D-1. Legislative findings.

(a) The Legislature finds that advancements in technology havemade possible the efficient development of abundant natural gas andoil resources contained in underground shales and other geologicformations in the State of West Virginia. These resources have thepotential to generate jobs, stimulate economic activity, ensureenergy security, reduce carbon and other emissions and providesignificant revenues to the state.

(b) The Legislature further finds that creation of a research,education, policy and economic development entity at West VirginiaUniversity for the purpose of pursuing independent, objective,research-driven analysis that can improve the effective andefficient development of shale resources is in furtherance of theuniversity's land grant status. Creation of this entity will allowWest Virginia to focus on the prudent development and regulation ofnatural gas and liquid hydrocarbon from the shale resources in thestate and throughout the world.

§18B-11D-2. Creation of the Shale Research, Education, Policy andEconomic Development Center at West Virginia University;purposes.

(a) In view of the findings set forth in section one of thisarticle, there is hereby created a research, education, policy andeconomic development entity known as the Shale Research, Education,Policy and Economic Development Center at West Virginia University. This center meets the criteria for creation of new centers insection two, article eleven-c of this chapter and, therefore, isnot subject to the approval process established by article eleven-cof this chapter.

(b) The purposes for which the center are established include,but are not limited to, the following:

(1) Providing an opportunity for West Virginia University topartner with industry and government bodies in the state, thenation and around the world to explore opportunities and engage inscientific research and development of shale resources;

(2) Promoting cooperative and collaborative partnershipsbetween research universities in the state in order to facilitateknowledge sharing that will benefit all areas of West Virginia;

(3) Generating and documenting best practices in the areas ofenvironment, safety, business and health;

(4) Advancing environmental performance by garnering industryand regulatory commitment;

(5) Improving data and process transparency and developingeffective outreach and engagement of affected communities;

(6) Protecting the environment of West Virginia andsurrounding states by minimizing methane, carbon dioxide and anyother potential emissions;

(7) Structuring legal frameworks and developing rules topromote prudent development of and access to the state's resources.

(8) Developing and maintaining a flexible structure toaccommodate the needs of the state and of West Virginia Universitytogether with its partners in education, government and industry. This flexible structure can be achieved by encouraging thefollowing actions:

(A) Investment by state and federal sources in strategicresearch;

(B) Initiation of research and development programs that arefocused and co-funded by West Virginia University and itsgovernment and industry partners;

(D) Provision of specialized services for government andindustry partners.

(c) West Virginia University shall use its researchcapabilities in support of the center, including, but not limitedto, the following:

(1) Technologies for efficient resource assessment andefficient extraction. These include various improvements toextraction technologies, earth imaging and other technologies tomap, evaluate and assess resources and to understand geoprocesses;

(2) Models to predict and manipulate multiphase fluid flowincluding gas, liquid hydrocarbons and hydraulic fracture fluids;and water life cycle analysis from source through staging, use,wastewater recycling and treatment.

(3) Environmental and economic impacts, such as fuel cycleanalysis and construction of state-wide baselines for water and airquality, control of emissions and fuel waste in all cycles ofenergy production and delivery;

(4) Policy analysis to facilitate cost effective permitting,industry management, regulation and acceptance; and improvedgathering, storage, transmission, processing, analysis,transparency and access of energy data to serve government,industry, and the public.

(5) Human dimensions, such as workforce development, incooperation with public education and state institutions of highereducation in programs specializing in energy and environmentfields; analysis of public health risks and promotion of bestpractices to protect public health and work place health andsafety;

(6) Effective communication strategies to establish sharedunderstandings of expectations and awareness of issues and factsand to assist state agencies in developing a transparent, efficientand effective environment to manage the oil and natural gasresources for the benefit of all the state's citizens. Theseagencies include the West Virginia Department of EnvironmentalProtection, West Virginia State Tax Division, and the West VirginiaGeologic and Economic Survey. The purposes of the communicationstrategies are to ensure that capital investment is attracted toour State and development of these resources is tracked accurately,that appropriate revenue streams are captured by the state and thatroyalties to mineral lessors are protected appropriately;

(7) Development of best business practices to assist increating and maintaining a robust, profitable, and prudentlypositioned industry in the state; and

(8) Tracking and analyzing the economic benefit, impact andeffect of the industry upon the state.

§18B-11D-3. Funding.

(a) Funding for the center is provided by legislativeappropriation and through support received from private industry,federal and international sources.

(b) Nothing in this article requires an appropriation, nor anyspecific level of appropriation, by the Legislature.

§18B-11D-4. Powers and duties of the board of governors and theShale Research, Education, Policy and EconomicDevelopment Center at West Virginia University.

(a) West Virginia University Board of Governors -- The boardis authorized to operate the center to further the purposes setforth in this article. Powers and duties include, but are notlimited to, the following:

(1) Acquisition by purchase, lease, gift or otherwise, ofnecessary lands, and the construction of necessary buildings andappropriate industrial operations equipment;

(2) Expansion, remodeling, altering or equipping necessarybuildings;

(3) Making contracts with any state, county or municipalagency or private entity necessary and incidental to theperformance of its powers and duties under this article;

(4) Providing for equipment, expenses, compensation ofpersonnel, operation and maintenance of any facility of an agencyor institution used for the purposes of this article; and

(5) Cooperating with other state research universities,agencies of the state, county and federal governments.

(b) The Shale Research, Education, Policy and EconomicDevelopment Center at West Virginia University -- Under thesupervision of the Director, appointed pursuant to section five ofthis article, and within the scope of the authority granted by thisarticle and by rules duly promulgated by the board of governorspursuant to section six, article one of this chapter, the centermay take all actions necessary to fulfill the established purposesincluding providing the research capabilities set forth in sectiontwo of this article.

§18B-11D-5. Powers and duties of the center director.

(a) Subject to rules promulgated by the board of governorspursuant to section six of this article, the President of WestVirginia University shall appoint a director of the center who willserve at the will and pleasure of the President.

(b) The director has the following responsibilities:

(1) Manage the day-to-day operations of the center;

(2) Coordinate the partnerships and act as the liaison betweeneducation, industry and government bodies and other entities asappropriate to address the findings set forth in section one ofthis article;

(3) Develop and advocate for an annual budget for the center;

(4) Report to the board of governors annually or as requestedand provide an analysis of the center’s activities together withany recommendations for improvement; and

(5) Employ adequate professional, technical, and other staffnecessary to fulfill the purposes of this article.

§18B-11D-6. Rules.

(a) The board of governors shall promulgate and adopt rulespursuant to section six, article one of this chapter, for theestablishment, operation, cost reimbursem*nt, fees for services,maintenance and government control of the center established bythis article.

(b) The board may promulgate rules necessary for cooperationunder and compliance with any existing or future federal statutespertaining to grants-in-aid and any other rules necessary toeffectuate the purposes of this article.

The bill (Eng. Com. Sub. for H. B. No. 4511), as amended, wasthen ordered to third reading.

On motion of Senator Unger, the constitutional rule requiringa bill to be read on three separate days was suspended by a vote offour fifths of the members present, taken by yeas and nays.

The nays were: None.

Absent: K. Facemyer--1.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.4511) was then read a third time and put upon its passage.

The nays were: None.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4511) passed.

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

Eng. Com. Sub. for House Bill No. 4511--A Bill to amend theCode of West Virginia, 1931, as amended, by adding thereto a newarticle, designated §18B-11C-1, §18B-11C-2 and §18B-11C-3; and toamend said code by adding thereto a new article, designated§18B-11D-1, §18B-11D-2, §18B-11D-3, §18B-11D-4, §18B-11D-5 and§18B-11D-6, all relating to higher education centers and institutesgenerally; setting forth legislative findings and intent; providingdefinitions; establishing criteria for center creation andapproval; requiring certain rules; creating the Shale Research,Education, Policy and Economic Development Center at West VirginiaUniversity; setting forth legislative findings and purposes; andproviding certain powers and duties of West Virginia UniversityBoard of Governors, the center and the center director.

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

The nays were: None.

Absent: K. Facemyer--1.

So, two thirds of all the members elected to the Senate havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4511) takes effect July 1, 2012.

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

Eng. House Bill No. 4542, Relating to unemploymentcompensation benefits.

On second reading, coming up in regular order, was read asecond time.

At the request of Senator Palumbo, unanimous consent beinggranted, the bill was advanced to third reading with the unreportedJudiciary committee amendment pending and the right for furtheramendments to be considered on that reading.

Eng. Com. Sub. for House Bill No. 4605, Providing a premaritaleducation option to applicants for marriage licenses.

On second reading, coming up in regular order, was read asecond time.

On motion of Senator Prezioso, the following amendment to thebill was reported by the Clerk and adopted:

On page thirteen, section ten, by striking out all ofsubparagraph (B) and inserting in lieu thereof a new subparagraph(B), to read as follows:

(B) Five dollars to the credit of the special revenue account,hereby created, designated the “Fund for Civil Legal Services forLow Income Persons”, which shall consist of all gifts, grants,bequests, transfers, appropriations or other donations or paymentswhich may be received and administered by the Division of Justiceand Community Services from any governmental entity or unit or anyperson, firm, foundation, or corporation for the purposes of thissection, and all interest or other return earned from investment ofthe fund.Expenditures from the fund shall be made by the Directorof the Division of Justice and Community Services and shall belimited to grants to nonprofit agencies which provide civil legalservices to low income persons made at his or her discretion. Anybalance in the fund at the end of each fiscal year shall not revertto the general revenue fund but shall remain in the fund and beexpended as provided by this section.

The bill (Eng. Com. Sub. for H. B. No. 4605), as amended wasthen ordered to third reading.

Eng. House Bill No. 4634, Removing the requirement for theLegislative Auditor to conduct certain fiscal audits of the AlcoholBeverage Control Commission and the Children's Trust Fund.

On second reading, coming up in regular order, was read asecond time.

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

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

That §49-6C-1 of the Code of West Virginia, 1931, as amended,be amended and reenacted; and that §60-2-21 of said code be amendedand reenacted, all to read as follows:

CHAPTER 49. WEST VIRGINIA CHILD PROTECTIVE SERVICES ACT.

ARTICLE 6C. CHILDREN’S TRUST FUND.

§49-6C-1. Continuation and transfer of control of trust fund.

(a) The Children’s Fund, created for the sole purpose ofawarding grants, loans and loan guarantees for child abuse andneglect prevention activities by enactment of chapter twenty-seven,Acts of the Legislature, 1984, as last amended and reenacted bychapter one hundred fifty-nine, Acts of the Legislature, 1999, ishereby continued and renamed the West Virginia Children’s TrustFund: Provided, That upon the effective date of the enactment ofthis section during the second extraordinary session of the 2007Legislature, the fund shall be administered by the Commissioner ofthe Bureau for Children and Families. Gifts, bequests or donationsfor this purpose, in addition to appropriations to the fund, shallbe deposited in the State Treasury in a special revenue accountunder the control of the Secretary of the Department of Health andHuman Resources or his or her designee.

(b) Each state taxpayer may voluntarily contribute a portionof the taxpayer's state income tax refund to the Children’s TrustFund by designating the contribution on the state personal incometax return form. The bureau shall approve the wording of thedesignation on the income tax return form. The State TaxCommissioner shall determine by July 1, of each year the totalamount designated pursuant to this subsection and shall report thatamount to the State Treasurer, who shall credit that amount to theChildren's Trust Fund.

(c) All interest accruing from investment of moneys in theChildren's Trust Fund shall be credited to the fund. TheLegislative Auditor shall conduct an audit of the fund before July1, 2008, and at least every three fiscal years thereafter at leastevery five fiscal years.

(d) Grants, loans and loan guarantees may be awarded from theChildren's Trust Fund by the Commissioner of the Bureau forChildren and Families for child abuse and neglect preventionactivities.

(e) Upon the effective date of the enactment of this section,all employees, records, responsibilities, obligations, assets andproperty, of whatever kind and character, of the Governor’s Cabineton Children and Families are hereby transferred to the Bureau forChildren and Families within the Department of Health and HumanResources, including, but not limited to, all rights andobligations held by the Governor’s Cabinet on Children and Familiesunder any grants, loans or loan guarantees previously awarded fromthe Children’s Trust Fund.

(f) All orders, determinations, rules, permits, grants,contracts, certificates, licenses, waivers, bonds, authorizationsand privileges which have been issued, made, granted or allowed tobecome effective by the Governor, by any state department or agencyor official thereof, or by a court of competent jurisdiction, inthe performance of functions which have been transferred to theBureau for Children and Families within the Department of Healthand Human Resources, and were in effect on the date the transferoccurred continue in effect, for the benefit of the department,according to their terms until modified, terminated, superseded,set aside or revoked in accordance with the law by the Governor,the Secretary of the Department of Health and Human Resources orother authorized official, a court of competent jurisdiction or byoperation of law.

CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.

ARTICLE 2. ALCOHOLIC BEVERAGE CONTROL COMMISSIONER.

§60-2-21. Audit.

Before July 1, 2001 and at least every two fiscal yearsthereafter At least every five fiscal years, the LegislativeAuditor shall audit the affairs of the West Virginia AlcoholBeverage Control Commissioner and report the results of the auditto the Governor. The cost of the audit shall be paid from theoperating fund.

The bill (Eng. H. B. No. 4634), as amended, was then orderedto third reading.

On motion of Senator Unger, the constitutional rule requiringa bill to be read on three separate days was suspended by a vote offour fifths of the members present, taken by yeas and nays.

The nays were: None.

Absent: K. Facemyer--1.

Having been engrossed, the bill (Eng. H. B. No. 4634) was thenread a third time and put upon its passage.

On the passage of the bill, the yeas were: Barnes, Beach,Boley, Browning, Chafin, Edgell, Fanning, Foster, Green, Hall,Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller,Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler(Mr. President)--32.

The nays were: D. Facemire--1.

Absent: K. Facemyer--1.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng. H.B. No. 4634) passed.

The following amendment to the title of the bill, from theCommittee on Government Organization, was reported by the Clerk andadopted:

Eng. House Bill No. 4634--A Bill to amend and reenact §49-6C-1of the Code of West Virginia, 1931, as amended; and to amend andreenact §60-2-21 of said code, all relating to fiscal auditsconducted by the Legislative Auditor of the Alcohol BeverageControl Commission and the Children’s Trust Fund; increasing auditsof the Alcohol Beverage Control Commission from two fiscal years tofiscal five years; and increasing audits of the Children’s TrustFund from three fiscal years to five fiscal years.

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

Eng. House Bill No. 4652, Making a supplementary appropriationto various agencies.

On second reading, coming up in regular order, was read asecond time and ordered to third reading.

Eng. House Bill No. 4656, Making a supplementary appropriationto the Division of Human Services, Temporary Assistance for NeedyFamilies.

On second reading, coming up in regular order, was read asecond time and ordered to third reading.

Eng. House Bill No. 4657, Making a supplementary appropriationto the Department of Administration, Office of the Secretary,Employee Pension and Health Care Benefit Fund, Division ofPurchasing, Department of Environmental Protection, etc.

On second reading, coming up in regular order, was read asecond time and ordered to third reading.

Eng. House Bill No. 4658, Supplementing, amending, decreasingand increasing items of the existing appropriations from the StateRoad Fund to the Department of Transportation, Division ofHighways.

On second reading, coming up in regular order, was read asecond time and ordered to third reading.

The end of today's second reading calendar having beenreached, the Senate returned to the consideration of

Eng. Com. Sub. for House Bill No. 4396, West Virginia Fire,EMS and Law-Enforcement Officer Survivor Benefit Act.

On second reading, coming up in deferred order, was read asecond time.

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

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

That §5H-1-1, §5H-1-2 and §5H-1-3 of the Code of WestVirginia, 1931, as amended, be amended and reenacted, all to readas follows:

ARTICLE 1. WEST VIRGINIA FIRE, EMS AND LAW-ENFORCEMENT OFFICERSURVIVOR BENEFIT ACT.

§5H-1-1. Title and legislative intent.

(a) This article is known as the “West Virginia Fire, and EMSand Law-Enforcement Officer Survivor Benefit Act.”

(b) It is the intent of the Legislature to provide for thepayment of death benefits to the surviving spouse, designatedbeneficiary, children or parents of firefighters, and EMS and law-enforcement personnel killed in the performance of their duties.

§5H-1-2. Death benefit for survivors.

(a) In the event a firefighter, or EMS or law-enforcementprovider is killed in the performance of his or her duties, thedepartment chief, within thirty days from the date of death shallsubmit certification of the death to the Governor’s office.

(b) This act includes both paid and volunteer fire, and EMSand law-enforcement personnel acting in the performance of his orher duties of any fire, or EMS or law-enforcement departmentcertified by the State of West Virginia.

(c) A firefighter, or EMS or law-enforcement provider isconsidered to be acting in the performance of his or her duties forthe purposes of this act when he or she is participating in anyrole of a fire, or EMS or law-enforcement department function. This includes training, administration meetings, fire, or EMS orlaw-enforcement incidents, service calls, apparatus, equipment orstation maintenance, fundraisers and travel to or from suchfunctions.

(d) Travel includes riding upon or in any apparatus or vehiclewhich is owned or used by the fire, or EMS or law-enforcementdepartment, or any other vehicle going to or directly returningfrom a firefighter’s home, place of business or other place wherehe or she shall have been prior to participating in a fire, or EMSor law-enforcement department function or upon the authorization ofthe chief of the department, agency head or other person in charge.

(e) Certification shall include the name of the certifiedfire, or EMS or law-enforcement program, the name of the deceasedfirefighter, or EMS or law-enforcement provider, the name andaddress of the beneficiary, any documentation designating abeneficiary or beneficiaries and setting forth the circ*mstancesthat qualify the deceased individual for death benefits under thisact. Upon receipt of the certification from the certified fire, orEMS or law-enforcement program, the state shall, from moneys fromthe State Treasury, General Fund, pay to the certified fire, or EMSor law-enforcement program the sum of $50,000 in the name of thebeneficiary of the death benefit. Within five days of receipt ofthis sum from the state, the fire, or EMS or law-enforcementprogram certified by the state shall pay the sum as a benefit tothe surviving spouse, or designated beneficiary. If there is nodesignated beneficiary or surviving spouse or designatedbeneficiary, to then the minor children of the firefighter, or EMSor law-enforcement provider killed in the performance of duty. When no spouse, designated beneficiary, or minor children survive,the benefit shall be paid to the parent or parents of thefirefighter, or EMS or law-enforcement provider. It is theresponsibility of the certified fire or EMS program to document thesurviving spouse or beneficiary for purposes of reporting to theGovernor’s office.

(f) Any death ruled by a physician to be a result of an injurysustained during any of the above mentioned performance of firedepartment, EMS or law-enforcement duties will be eligible for thisbenefit, even if this death occurs at a later time.

(g) Those individuals who are both firefighters and EMSpersonnel covered by this article are eligible for only one deathbenefit payment.

(h) Every department or agency head employing persons to whichthis article applies shall provide notice of the benefit providedhereby to such employees and encourage covered employees to providea written designation of beneficiary to be maintained in theemployee’s personnel file.

§5H-1-3. Effective date.

The effective date for this act is January 1, 2007. Theoperation of the amendments to this article enacted during the year2012 shall be effective retroactively to January 1, 2012.

The bill (Eng. Com. Sub. for H. B. No. 4396), as amended, wasthen ordered to third reading.

On motion of Senator Unger, the constitutional rule requiringa bill to be read on three separate days was suspended by a vote offour fifths of the members present, taken by yeas and nays.

On suspending the constitutional rule, the yeas were: Barnes,Beach, Boley, Browning, Chafin, Edgell, D. Facemire, Fanning,Foster, Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird,McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler(Mr. President)--32.

The nays were: None.

Absent: K. Facemyer and Stollings--2.

Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.4396) was then read a third time and put upon its passage.

On the passage of the bill, the yeas were: Barnes, Beach,Boley, Browning, Chafin, Edgell, D. Facemire, Fanning, Foster,Green, Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe,Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Sypolt,Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr.President)--32.

The nays were: None.

Absent: K. Facemyer and Stollings--2.

So, a majority of all the members present and voting havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4396) passed.

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

Eng. Com. Sub. for House Bill No. 4396--A Bill to amend andreenact §5H-1-1, §5H-1-2 and §5H-1-3 of the Code of West Virginia,1931, as amended, all relating to authorizing a death benefit tothe surviving spouse or designated beneficiary or contingentbeneficiaries of law-enforcement officers who die in theperformance their duties; requiring agencies to notify employees ofthe possible benefit; encouraging departments to obtain andpreserve written designations of beneficiaries; clarifying order ofbeneficiaries; and establishing an effective date of January 1,2012.

Senator Unger moved that the bill take effect from passage.

On this question, the yeas were: Barnes, Beach, Boley,Browning, Chafin, Edgell, D. Facemire, Fanning, Foster, Green,Hall, Helmick, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller,Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Sypolt, Tucker,Unger, Wells, Williams, Wills, Yost and Kessler (Mr.President)--32.

The nays were: None.

Absent: K. Facemyer and Stollings--2.

So, two thirds of all the members elected to the Senate havingvoted in the affirmative, the President declared the bill (Eng.Com. Sub. for H. B. No. 4396) takes effect from passage.

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

Without objection, the Senate returned to the third order ofbusiness.

A message from The Clerk of the House of Delegates announcedthat that body had refused to recede from its amendments, andrequested the appointment of a committee of conference of threefrom each house on the disagreeing votes of the two houses, as to

Eng. Com. Sub. for Senate Bill No. 371, Providing schoolsystem under declared state of emergency participate as innovationzone pilot project.

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

Delegates Perry, Caputo and Rowan.

On motion of Senator Unger, the Senate agreed to theappointment of a conference committee on the bill.

Whereupon, Senator Tomblin (Mr. President) appointed thefollowing conferees on the part of the Senate:

Senators Plymale, Wells and Barnes.

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

The Senate proceeded to the eleventh order of business and theintroduction of guests.

Pending announcement of a meeting of the Committee on Rules,

On motion of Senator Unger, the Senate adjourned untiltomorrow, Saturday, March 10, 2012, at 11 a.m.

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