H

H. B. 2553

(By Delegate Walters)
[Introduced February 21, 2005; referred to the

Committee on Health and Human Resources then the Judiciary.]

A BILL to amend and reenact §18B-1B-4 of the Code of West Virginia, 1931, as amended, relating to requiring the Higher Education Policy Commission to ensure that no person employed by any state institution of higher education, or who provides services to any state institution of higher education or to the Higher Education Policy Commission, performs or participates in or instructs students in how to perform any abortion or abortion procedure; and creating a criminal penalty for persons who are employed by any state institution of higher education, or who provide services to any state institution of higher education or to the Higher Education Policy Commission from performing or participating in or instructing students in how to perform any abortion or abortion procedure.

Be it enacted by the Legislature of West Virginia:
That §18B-1B-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 1B. HIGHER EDUCATION POLICY COMMISSION.

§18B-1B-4. Powers and duties of Higher Education Policy Commission.

(a) The primary responsibility of the Commission is to develop, establish and implement policy that will achieve the goals and objectives found in section one-a, article one of this chapter. The Commission shall exercise its authority and carry out its responsibilities in a manner that is consistent and not in conflict with the powers and duties assigned by law to the West Virginia council for community and technical college education. To that end, the Commission has the following powers and duties relating to the institutions under its jurisdiction:
(1) Develop, oversee and advance the public policy agenda pursuant to section one, article one-a of this chapter to address major challenges facing the state, including, but not limited to, the goals and objectives found in section one-a, article one of this chapter and including specifically those goals and objectives pertaining to the compacts created pursuant to section two, article one-a of this chapter and to develop and implement the master plan described in section nine of this article for the purpose of accomplishing the mandates of this section;
(2) Develop, oversee and advance the implementation jointly with the council of a financing policy for higher education in West Virginia. The policy shall meet the following criteria:
(A) Provide an adequate level of education and general funding for institutions pursuant to section five, article one-a of this chapter;
(B) Serve to maintain institutional assets, including, but not limited to, human and physical resources and deferred maintenance;
(C) Invest and provide incentives for achieving the priority goals in the public policy agenda, including, but not limited to, those found in section one-a, article one of this chapter; and
(D) Incorporate the plan for strategic funding to strengthen capacity for support of community and technical college education established by the West Virginia council for community and technical college education pursuant to the provisions of section six, article two-b of this chapter;
(3) In collaboration with the council, create a policy leadership structure capable of the following actions:
(A) Developing, building public consensus around and sustaining attention to a long-range public policy agenda. In developing the agenda, the Commission and council shall seek input from the Legislature and the Governor and specifically from the State Board of Education and local school districts in order to create the necessary linkages to assure smooth, effective and seamless movement of students through the public education and post-secondary education systems and to ensure that the needs of public school courses and programs can be fulfilled by the graduates produced and the programs offered;
(B) Ensuring that the governing boards carry out their duty effectively to govern the individual institutions of higher education; and
(C) Holding the higher education institutions and the higher education systems as a whole accountable for accomplishing their missions and implementing the provisions of the compacts;
(4) Develop and adopt each institutional compact;
(5) Review and adopt the annual updates of the institutional compacts;
(6) Serve as the accountability point to:
(A) The Governor for implementation of the public policy agenda; and
(B) The Legislature by maintaining a close working relationship with the legislative leadership and the Legislative Oversight Commission on Education accountability;
(7) Jointly with the council, promulgate legislative rules pursuant to article three-a, chapter twenty-nine-a of this code to fulfill the purposes of section five, article one-a of this chapter;
(8) Establish and implement a peer group for each institution as described in section three, article one-a of this chapter;
(9) Establish and implement the benchmarks and performance indicators necessary to measure institutional achievement towards state policy priorities and institutional missions pursuant to section two, article one-a of this chapter;
(10) Annually report to the Legislature and to the Legislative Oversight Commission on Education accountability during the January interim meetings on a date and at a time and location to be determined by the President of the Senate and the Speaker of the House of Delegates. The report shall address at least the following:
(A) The performance of its system of higher education during the previous fiscal year, including, but not limited to, progress in meeting goals stated in the compacts and progress of the institutions and the higher education system as a whole in meeting the goals and objectives set forth in section one-a, article one of this chapter;
(B) An analysis of enrollment data collected pursuant to section one, article ten of this chapter and recommendations for any changes necessary to assure access to high-quality, high-demand education programs for West Virginia residents;
(C) The priorities established for capital investment needs pursuant to subdivision (11) of this subsection and the justification for such priority;
(D) Recommendations of the commission for statutory changes needed to further the goals and objectives set forth in section one-a, article one of this chapter;
(11) Establish a formal process for identifying needs for capital investments and for determining priorities for these investments. It is the responsibility of the Commission to assure a fair distribution of funds for capital projects between the Commission and the council. To that end the Commission shall take the following steps:
(A) Receive the list of priorities developed by the council for capital investment for the institutions under the council's jurisdiction pursuant to subsection (b), section six, article two-b of this chapter;
(B) Place the ranked list of projects on the agenda for action within sixty days of the date on which the list was received;
(C) Select a minimum of three projects from the list submitted by the council to be included on the ranked list established by the Commission. At least one of the three projects selected must come from the top two priorities established by the council.
(12) Maintain guidelines for institutions to follow concerning extensive capital projects. The guidelines shall provide a process for developing capital projects, including, but not limited to, the notification by an institution to the Commission of any proposed capital project which has the potential to exceed one million dollars in cost. Such a project may not be pursued by an institution without the approval of the Commission. An institution may not participate directly or indirectly with any public or private entity in any capital project which has the potential to exceed one million dollars in cost;
(13) Acquire legal services as are considered necessary, including representation of the Commission, its institutions, employees and officers before any court or administrative body, notwithstanding any other provision of this code to the contrary. The counsel may be employed either on a salaried basis or on a reasonable fee basis. In addition, the Commission may, but is not required to, call upon the Attorney General for legal assistance and representation as provided by law;
(14) Employ a chancellor for higher education pursuant to section five of this article;
(15) Employ other staff as necessary and appropriate to carry out the duties and responsibilities of the Commission and the council, in accordance with the provisions of article four of this chapter;
(16) Provide suitable offices in Charleston for the chancellor, vice chancellors and other staff;
(17) Advise and consent in the appointment of the presidents of the institutions of higher education under its jurisdiction pursuant to section six of this article. The role of the Commission in approving an institutional president is to assure through personal interview that the person selected understands and is committed to achieving the goals and objectives as set forth in the institutional compact and in section one-a, article one of this chapter;
(18) Approve the total compensation package from all sources for presidents of institutions under its jurisdiction, as proposed by the governing boards. The governing boards must obtain approval from the Commission of the total compensation package both when institutional presidents are employed initially and afterward when any change is made in the amount of the total compensation package;
(19) Establish and implement the policy of the state to assure that parents and students have sufficient information at the earliest possible age on which to base academic decisions about what is required for students to be successful in college, other post-secondary education and careers related, as far as possible, to results from current assessment tools in use in West Virginia;
(20) Approve and implement a uniform standard jointly with the council to determine which students shall be placed in remedial or developmental courses. The standard shall be aligned with college admission tests and assessment tools used in West Virginia and shall be applied uniformly by the governing boards throughout the public higher education system. The chancellors shall develop a clear, concise explanation of the standard which they shall communicate to the State Board of Education and the State Superintendent of Schools;
(21) Review and approve or disapprove capital projects as described in subdivision (11) of this subsection;
(22) Jointly with the council, develop and implement an oversight plan to manage systemwide technology such as the following:
(A) Expanding distance learning and technology networks to enhance teaching and learning, promote access to quality educational offerings with minimum duplication of effort; and
(B) Increasing the delivery of instruction to nontraditional students, to provide services to business and industry and increase the management capabilities of the higher education system;
(23) Establish and implement policies and procedures to ensure that students may transfer and apply toward the requirements for a bachelor's degree the maximum number of credits earned at any regionally accredited in-state or out-of-state community and technical college with as few requirements to repeat courses or to incur additional costs as is consistent with sound academic policy;
(24) Establish and implement policies and procedures to ensure that students may transfer and apply toward the requirements for a degree the maximum number of credits earned at any regionally accredited in-state or out-of-state higher education institution with as few requirements to repeat courses or to incur additional costs as is consistent with sound academic policy;
(25) Establish and implement policies and procedures to ensure that students may transfer and apply toward the requirements for a master's degree the maximum number of credits earned at any regionally accredited in-state or out-of-state higher education institution with as few requirements to repeat courses or to incur additional costs as is consistent with sound academic policy;
(26) Establish and implement policies and programs, in cooperation with the council and the institutions of higher education, through which students who have gained knowledge and skills through employment, participation in education and training at vocational schools or other education institutions, or internet-based education programs, may demonstrate by competency-based assessment that they have the necessary knowledge and skills to be granted academic credit or advanced placement standing toward the requirements of an associate degree or a bachelor's degree at a state institution of higher education;
(27) Seek out and attend regional, national and international meetings and forums on education and workforce development-related topics, as in the Commission's discretion is critical for the performance of their duties as members, for the purpose of keeping abreast of education trends and policies to aid it in developing the policies for this state to meet the established education goals and objectives pursuant to section one-a, article one of this chapter;
(28) Develop, establish and implement guidelines for higher education governing boards and institutions to follow when considering capital projects. The guidelines shall include, but not be limited to, the following:
(A) That the governing boards and institutions not approve or promote projects that give competitive advantage to new private sector projects over existing West Virginia businesses, unless the Commission determines such private sector projects are in the best interest of the students, the institution and the community to be served; and
(B) That the governing boards and institutions not approve or promote projects involving private sector businesses which would have the effect of reducing property taxes on existing properties or avoiding, in whole or in part, the full amount of taxes which would be due on newly developed or future properties;
(29) Consider and submit to the appropriate agencies of the executive and legislative branches of state government a budget that reflects recommended appropriations from the Commission and the institutions under its jurisdiction. The Commission shall submit as part of its budget proposal the separate recommended appropriations it received from the council both for the council and the institutions under the council's jurisdiction. The Commission annually shall submit the proposed institutional allocations based on each institution's progress toward meeting the goals of its institutional compact;
(30) The Commission has the authority to assess institutions under its jurisdiction for the payment of expenses of the Commission or for the funding of statewide higher education services, obligations or initiatives related to the goals set forth for the provision of public higher education in the state;
(31) Promulgate rules allocating reimbursement of appropriations, if made available by the Legislature, to institutions of higher education for qualifying noncapital expenditures incurred in the provision of services to students with physical, learning or severe sensory disabilities;
(32) Make appointments to boards and commissions where this code requires appointments from the state college system board of directors or the University of West Virginia system board of trustees which were abolished effective the thirtieth day of June, two thousand, except in those cases where the required appointment has a specific and direct connection to the provision of community and technical college education, the appointment shall be made by the council. Notwithstanding any provisions of this code to the contrary, the Commission or the council may appoint one of its own members or any other citizen of the state as its designee. The Commission and council shall appoint the total number of persons in the aggregate required to be appointed by these previous governing boards;
(33) Pursuant to the provisions of article three-a, chapter twenty-nine-a of this code and section six, article one of this chapter, promulgate rules as necessary or expedient to fulfill the purposes of this chapter. The Commission and the council shall promulgate a uniform joint legislative rule for the purpose of standardizing, as much as possible, the administration of personnel matters among the institutions of higher education;
(34) Determine when a joint rule among the governing boards of the institutions under its jurisdiction is necessary or required by law and, in those instances and in consultation with the governing boards, promulgate the joint rule;
(35) Implement a policy jointly with the council whereby course credit earned at a community and technical college transfers for program credit at any other state institution of higher education and is not limited to fulfilling a general education requirement; and
(36) Promulgate a joint rule with the council establishing tuition and fee policy for all institutions of higher education. The rule shall include, but is not limited to, the following:
(A) Comparisons with peer institutions;
(B) Differences among institutional missions;
(C) Strategies for promoting student access;
(D) Consideration of charges to out-of-state students; and
(E) Such other policies as the Commission and council consider appropriate.
(37) Ensure that no person employed by, compensated by or providing any services for, any state institution of higher education or the Commission performs or participates in or instructs students in how to perform any specific abortion or any abortion procedure: Provided, That this subdivision shall not interfere with the teaching or performing of medical procedures which have valid uses apart from the performing of abortions: Provided, however, That nothing in this subdivision may be construed to endorse, allow, permit, or approve of any abortion: Provided further, That any person employed by, compensated by, or providing any services for, any state institution of higher education or the Commission, who performs or participates in or instructs any student in how to perform any specific abortion or any abortion procedure is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one thousand dollars.
(b) In addition to the powers and duties listed in subsection (a) of this section, the Commission has the following general powers and duties related to its role in developing, articulating and overseeing the implementation of the public policy agenda:
(1) Planning and policy leadership including a distinct and visible role in setting the state's policy agenda and in serving as an agent of change;
(2) Policy analysis and research focused on issues affecting the system as a whole or a geographical region thereof;
(3) Development and implementation of institutional mission definitions including use of incentive funds to influence institutional behavior in ways that are consistent with public priorities;
(4) Academic program review and approval for institutions under its jurisdiction including the use of institutional missions as a template to judge the appropriateness of both new and existing programs and the authority to implement needed changes;
(5) Development of budget and allocation of resources, including reviewing and approving institutional operating and capital budgets and distributing incentive and performance-based funding;
(6) Administration of state and federal student aid programs under the supervision of the vice chancellor for administration, including promulgation of any rules necessary to administer those programs;
(7) Serving as the agent to receive and disburse public funds when a governmental entity requires designation of a statewide higher education agency for this purpose;
(8) Development, establishment and implementation of information, assessment and accountability systems, including maintenance of statewide data systems that facilitate long-term planning and accurate measurement of strategic outcomes and performance indicators;
(9) Jointly with the council, developing, establishing and implementing policies for licensing and oversight for both public and private degree-granting and nondegree-granting institutions that provide post-secondary education courses or programs in the state pursuant to the findings and policy recommendations to be determined as set forth in section eleven of this article;
(10) Development, implementation and oversight of statewide and regionwide projects and initiatives related to providing post-secondary education at the baccalaureate level and above such as those using funds from federal categorical programs or those using incentive and performance-based funding from any source; and
(11) Quality assurance that intersects with all other duties of the Commission particularly in the areas of planning, policy analysis, program review and approval, budgeting and information and accountability systems.
(c) In addition to the powers and duties provided ~~for~~ in subsections (a) and (b) of this section and any other powers and duties as may be assigned to it by law, the Commission has such other powers and duties as may be necessary or expedient to accomplish the purposes of this article.
(d) The Commission is authorized to withdraw specific powers of any governing board of an institution under its jurisdiction for a period not to exceed two years if the Commission makes a determination that:
(1) The governing board has failed for two consecutive years to develop an institutional compact as required in article one of this chapter;
(2) The Commission has received information, substantiated by independent audit, of significant mismanagement or failure to carry out the powers and duties of the board of governors according to state law; or
(3) Other circumstances which, in the view of the Commission, severely limit the capacity of the board of governors to carry out its duties and responsibilities.
(4) The period of withdrawal of specific powers may not exceed two years during which time the Commission is authorized to take steps necessary to reestablish the conditions for restoration of sound, stable and responsible institutional governance.

NOTE: The purpose of this bill is to require the Higher Education Policy Commission to ensure that no person employed by any state institution of higher education, or who provides services to any state institution of higher education or to the Higher Education Policy Commission, performs or participates in or instructs students in how to perform any abortion or abortion procedure. The bill also creates a criminal penalty for persons who are employed by any state institution of higher education, or who provides services to any state institution of higher education or to the Higher Education Policy Commission who perform or participate in or instruct students in how to perform any abortion or abortion procedure.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.