From the Well | February 19, 2024

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86th West Virginia Legislature

State Capitol

February 19, 2024

West Virginia News Headlines

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SHERIFFS’ COMPENSATION: The Senate Government Organization Committee adopted Senate Bill 730, which provides county sheriffs $15,000 annually for their job duty/role as the tax collector for each county.

WORKER PROTECTION: The House Judiciary Committee passed legislation intended to “to protect workers who protect themselves.”

LICENSURE: The House Committee on Finance tabled House Bill 5209, which would add an additional requirement to the duties of the Office of Health Facility Licensure and Certification. The additional duty would be to inspect each office-based, medication-assisted treatment program at least once every 24 months.

HUMAN TRAFFICKING: The House Judiciary Committee passed Committee Substitute for House Bill 5031, which relates to human trafficking.

ASSAULT PENALTY: The House Judiciary Committee passed legislation that would double the penalty for sexual assault on a minor.

JUVENILE COMPETENTCY: The House Judiciary Committee passed House Bill 5520, which involves juvenile competency.

CRIMES AGAINST CHILDREN: The House Judiciary Committee passed a bill to add a “person in a position of trust” to parent, guardian, or custodian in cases involving the murder, abuse, or neglect of a child.

MONEY LAUNDERING: The House Judiciary Committee passed a bill that adds a definition of digital currency and makes clarifications to the offense of money laundering.

MEDICAID TAXES: The House Finance Committee passed a bill that adjusts the tax tiers and rates that are levied on managed care organizations (MCOs).

MEDICAID SPENDING: Secretary Cynthia Persily of the Department of Human Services gave the House Finance Committee an overview of Medicaid spending trends in West Virginia.

SCHOOL BUS DRIVERS: The House Education Committee passed a bill that would require that a school bus driver who is charged with driving under the influence (DUI) of alcohol, controlled substances, or drugs with students present also be charged with child neglect for each student.

IN GOD WE TRUST: The Senate passed legislation that requires public schools to display the motto “In God We Trust.”

ASSISTED REPRODUCTION: The Senate Judiciary Committee voted to send legislation involving assisted reproduction to a subcommittee.

UTILITY MAPPING: The House Judiciary Committee passed legislation to create the utility pole rights-of-way and easement-mapping initiative.

GUARD PROGRAM: The Senate Military Committee adopted Senate Bill 681, which revises the service obligation for the National Guard Doctor of Medicine or Doctor of Osteopathic Medicine degree program.

Relating to the Anti-Terrorism Act

It would require the Attorney General to identify terroristic groups and requires restitution for victims of terrorism.

Delegates brought up many questions to Counsel, including pointing out that a picket line could be considered a blockade of property and be an act of terrorism.

Counsel agreed, saying, “I think that’s a well-founded point.”

Counsel also agreed that constitutional issues with the bill’s language allow for the charge of terrorism for an act that did not occur in West Virginia.

It was also noted that the bill would not allow West Virginians involved in a terrorist act out of state to come back to West Virginia.

Counsel agreed, saying, “There are issues with that being constitutional.”

Due to the questions of constitutionality and other issues raised, Chairman Tom Fast of Fayette County assigned the bill to a subcommittee and asked it to meet as soon as possible. Subcommittee members are William Ridenour of Jefferson County, chair, Todd Kirby of Raleigh County, and Joey Garcia of Marion County.

Clarifying compensation for county tax collector

Additionally, §6-8-5 relates to sheriffs’ duties in terms of ex-officio county treasurer in terms of tax collections, including reporting to various county entities about uncollected taxes.

With no debate, the Committee approved SB730 for consideration by the Senate.

Prohibiting the termination of employment of employees who defend themselves from an attack inside workplace

Counsel said the bill provides employment protections for employees who use reasonable and proportionate force, including deadly force, to defend themselves or others. The Committee adopted an amendment that states “any person who is physically attacked or in reasonable apprehension of being attacked” to clarify that it is not just a verbal attack.

In opposition to the amendment, a Delegate said the bill could be abused if an employee said, “I thought he was going to hit me, so I hit him first.”

The Committee passed another amendment to clarify that it could be an attack by someone who is not an employee co-worker at a place of employment, which would apply to third parties on the premises.

The bill was amended again to replace the word termination with adverse employment action and would state “adverse actions by their employer including but not limited to termination.”

Opposition was expressed to the bill, calling it a “lawyer’s employment bill” and stating that West Virginia is an at-will state where it’s an employer’s right to terminate an employee.

A supporter said the bill allows employees to defend themselves.

Delegate Laura Kimble of Harrison County said, “They don’t have to just take it.”

Relating to requiring the Office of Health Facility Licensure and Certification to inspect office-based medication-assisted treatment programs at least every 24 months

The Committee raised questions about how many more facilities would need to be inspected under the new requirement, how many complaints had been received to prompt increasing inspections, and how much it would cost to hire additional staff to conduct the inspections.

The Office of Health Facility Licensure and Certification believes it would need to hire four additional full-time staff at a cost of about $366,250 initially and $359,050 the following year.

The Committee questioned how long the inspections would take and whether inspectors could reasonably inspect one facility per week with the proposed staffing levels.

A fiscal note had been requested but was not available in the Committee packet at the time of the meeting.

Relating to human trafficking

The bill provides that, if an illegal alien is a victim, restitution is paid to the state, not to the victim.

Delegate Evan Hansen of Monongalia County asked Counsel, “If the Governor of a state places people on a bus or plane and they come to West Virginia, how is that handled by this bill?” He gave Texas and Florida as examples. Counsel was not sure.

An amendment was adopted that the bill doesn’t include any person hired to transport illegal aliens through West Virginia but still applies if the illegal aliens are sent to West Virginia.

Delegate Joey Garcia of Marion County noted that it’s interesting that the bill is aimed at what some of southern Governors are doing but that he couldn’t support the bill because of the restitution going to the state.

To double the criminal penalty for anyone found guilty of sexual assault on a minor

Kyle Moore, Jackson County Prosecuting Attorney, spoke on behalf of the West Virginia Prosecuting Attorneys Association, saying its members support increased penalties of those convicted, but he cautioned that there could be unintended consequences.

Prosecutor Moore said the bill could bring about more cases going to jury trial.

“We try to protect young victims who are scared,” he said, explaining the bill has the potential of causing more child victims to have to testify in particular cases.

Relating to juvenile competency

Counsel said the history of the bill began with Senate Bill 562, which was passed in 2021 following a Supreme Court case that noted that West Virginia doesn’t have a specific juvenile competency law. The state had to use an adult competency statute.

In 2021, a presumption was created that a child under age 14 is incompetent, but a child 14 and older is competent. This presumption of incompetence is delaying services in the field, and the state has difficulty finding qualified people to evaluate competency.

Therefore, the bill removes those presumptions of competency, which can be evaluated regardless of age of the child.

Relating to adding ‘person in a position of trust’ to certain crimes

“Person of position of trust” is defined elsewhere in statute, Counsel explained, and means a person acting in place of a parent or who is responsible for supervision of a child.

Relating generally to money laundering

Digital currency is defined as money represented by digital information that is stored, spent, and transferred electronically by a person as part of a financial transaction.

Increasing and maintaining the bracketed tax rates on the privilege of establishing or operating a health maintenance organization

The bill adjusts the tax tiers and rates that are levied on managed care organizations (MCOs) in the state. Currently, MCOs are taxed based on set tiers related to their number of Medicaid members per month. The new tiers would take effect July 1, 2024.

It also directs the Commissioner of the Bureau of Medical Services to adjust the tax rates for each tier on an annual basis. The goal of the adjustments is to maintain total Medicaid revenue from the MCO taxes at about 6% of the overall cost of providing Medicaid care to comply with federal requirements.

The different tiers in the proposed structure tax MCOs at different rates based on how many Medicaid members they have enrolled per month. Generally, MCOs with more members pay a higher tax rate under their applicable tier. The tiered system aims to maximize Medicaid revenue from the taxes, which are matched three to one by federal funds and used to reimburse health care providers, such as hospitals, at higher rates via the Medicaid program.

She noted the budget had increased by $1.4 billion since 2019. She attributed much of the growth to restrictions during the COVID-19 pandemic that prevented people from being removed from the Medicaid rolls even if they no longer were eligible. That caused enrollment to spike from around 500,000 pre-pandemic to more than 620,000 at its peak.

After the Secretary’s opening remarks, House Health and Human Resources Committee Chair Amy Summers of Taylor County began questioning with a keen interest in understanding spending on different Medicaid waiver programs.

Those programs provide home- and community-based services for individuals who otherwise might require institutional care, such as in a nursing home. Delegate Summers asked Secretary Persily to provide expenditure details for waivers supporting people with intellectual and developmental disabilities, substance use disorders, and serious emotional disturbances.

Delegate Summers expressed concern about reports of workforce shortages negatively affecting the ability to care for people in their own homes and communities through the waiver programs. Delegate Summers wanted to know whether budget growth was occurring in those areas and how costs could be projected.

Secretary Persily apologized and said she did not have the waiver-specific expenditure data on hand. She committed to following up with the requested spending breakdowns during the past five years. Delegate Summers stressed the importance of the information for evaluating spending priorities.

Her line of questioning highlighted the Legislature’s interest in fully understanding how Medicaid funds are being used for community-based long-term services and support. It also reflected concerns about potential cost shifts to institutions if workforce problems limit access to home and community care.

The budget presentation and discussion provided the Committee with insight into the complex challenges of overseeing the state’s multi-billion-dollar Medicaid program and balancing priorities around services, costs, and accountability.

Relating to school bus driver charged with DUI

Delegate Heather Tully of Nicholas County, sponsor of the bill, said an incident in her district involving a bus operator who was transporting 50 students prompted the legislation.

Under existing law, the bus operator could be charged with a civil penalty.

The bill was amended to make the offense “child endangerment” rather than “child neglect” for those convicted of the offense.

Based on Committee Counsel comments, prosecuting attorneys could have greater difficulty securing a conviction if the bus operator, in instances involving DUIs for alcohol or substance abuse, had to rely on a conviction for “child neglect” for each transported student.

Under West Virginia law (§49-1-201), a child’s health and well-being can be threatened in a few ways: Actual or attempted intentional infliction of physical or mental injury upon the child or any child in the home; sexual abuse or exploitation of the child; or the sale or attempted sale of the child.

“Neglect,” under §61-8D-4, is defined as “the unreasonable failure by a parent, guardian, or custodian of a minor child to exercise a minimum degree of care to assure the minor child’s physical safety or health.

HB5597 has a second reference to the House Judiciary Committee.

Relating to deferred adjudication and pre-trial diversions for first offense DUI cases

They currently are not eligible.

Jennifer Rutherford, Manager of Legal Services for the Division of Motor Vehicles, told the Committee that the agency’s initiative is based on four years of experience with Senate Bill130.

“We’re running into issues,” she said. She explained that DMV wants to open up deferral eligibility for the purpose of behavior modification. The auto-lock or “blow and go,” as several delegates called it, is part of behavior modification.

Relating to authorizing the West Virginia Division of Motor Vehicles to enforce administrative penalties for the civil offense of refusing a secondary chemical test

Eliminating the language regarding the receipt of the order and notice of suspension started a lengthy discussion regarding license suspension.

DMV Representative Jennifer Rutherford said citizens are under an affirmative obligation to keep their addresses updated with DMV.

Delegate Ty Nestor of Randolph County proposed an amendment to change the statute back to receipt of the order and notice of suspension from DMV. He said West Virginia is a poor state with little public transportation, and people need driver’s licenses to travel to work. His amendment would ensure that the “clock begins to tick” when the person receives the document. The amendment was rejected 12-10 on a voice vote.

Mandating that all courts provide adjudication for juvenile offenders for traffic violations to the Division of Motor Vehicles

Jennifer Rutherford, Manager of Legal Services for the Division of Motor Vehicles (DMV), was asked why DMV needs the records. She responded that currently the agency is not getting anything from the courts on juveniles, including the orders. She further explained that juveniles get points for speeding that can be diminished or removed if they participate in the classes. Juveniles also can get a restricted license rather than suspended license, and a restricted license would allow them to drive to school or church for example.

“I don’t like the idea of DMV getting involved when these things will have an impact on a young life,” Delegate Ty Nestor of Randolph County said.

He proposed an amendment that DMV receive all adjudications of delinquency. The amendment passed 10-9.

Displaying official US motto in public schools

Specifically, the legislation says a public elementary or secondary school or a state institution of higher education must display in a conspicuous place in each classroom of the school or institution a durable poster or framed copy of the United States national motto, “In God We Trust,” if the poster or framed copy is donated for display at the school or institution or purchased from private donations and made available to the school or institution.

Additionally, a poster or framed copy of the national motto must contain a representation of the United States flag centered under the national motto and a representation of the state flag and may not depict any words, images, or other information other than the representation (of “In God We Trust”).

A public elementary or secondary school and an institution of higher education may accept and use private donations for the purposes of the poster.

According to Committee Counsel, the House Education amended SB152 to make technical corrections in code citations.

The measure has a second reference to the House Judiciary Committee.

Assisted Reproduction Act

The Senate Judiciary Committee, following more than an hour of discussion on Friday, voted to refer SB575 to a Judiciary subcommittee. The legislation involves assisted reproduction.

As explained by Committee Counsel, SB575 could serve as a comprehensive, although voluntary, guide to surrogacy, which committee members referred to as “guardrails” for those entering into those agreements.

Counsel noted 18 states have laws relating to surrogacy, although provisions vary.

Echoing Senator Hunt, Senate Judiciary member Mike Stuart of Kanawha County said the measure, although vetted by the Senate Health and Human Resources Committee, of which he is a member, was complicated in terms of legal considerations. Thus, the bill began a trek toward a subcommittee.

Senator Patricia Rucker of Jefferson County asked whether SB575 would make West Virginia a destination for surrogacy.

As lengthy discussion ensued, Chair Charles Trump of Morgan County moved to limit SB 575provisions to related to state residents.

Senator Tom Takubo of Kanawha County, however, asked whether West Virginia laws supersede in situations where the birth occurs in other states with the birth mother seeking to keep a child carrying DNA from a birth parent or parents – the genesis of the legislation, which provides guidance for parties involved in the surrogacy.

Senator Mike Caputo of Marion County, asking similar questions, made a motion for a legislative interim committee to study surrogacy – an idea Senator Stuart broached.

Senator Trump, however, objected to the study resolution, saying SB575’s vetting by Senate Health and Human Resources, followed by Counsel’s research and drafting based on input from Committee members, provides the Legislature’s architecture in terms of surrogacy, giving courts immediate guidance.

He also said the legislation could be perfected through future legislative or judicial deliberations.

Thus, Senator Trump said, the Judiciary Committee has time to resolve the matter, looking into questions posed in two successive Judiciary Committee meetings.

Following brief discussion, the Committee adopted a motion that the Judiciary Chairman appoint a subcommittee to study the measure.

That motion was adopted. Senator Takubo is to to lead the Committee.

Other members include Senators Rucker and Caputo.

As reported in From the Well, these are among bill definitions:

·     “Genetic surrogate” means a woman who is not an intended parent and who agrees to become pregnant through assisted reproduction using her own gamete under a gestational surrogacy agreement as provided in the article.

·     “Gestational surrogacy” means a woman who is not an intended parent and who agrees to become pregnant through assisted reproduction using gametes that are not her own under a gestational-surrogacy agreement as provided in the article.

·     “Surrogacy agreement” means an agreement between one or more intended parents and a woman who is not an intended parent in which the woman agrees to become pregnant through assisted reproduction and which provides that each parent is a parent of a child conceived under the agreement. Unless otherwise specified, the term refers to both a gestational surrogacy agreement and a genetic surrogacy agreement.

Creating the utility pole rights of way and easement mapping initiative

Counsel told the committee that this bill passed the House last year.

HB4706 requires the Department of Economic Development to create maps with specific information about the poles and mandates confidentiality of information about electrical facilities connected to poles. An exception is provided to reporting whether a pole owner provides information directly to the telecommunications entity.

Revising service obligation for certain doctoral medical degree programs

SB681 revises the service obligation for the National Guard Doctor of Medicine or Doctor of Osteopathic Medicine degree program. Currently, there is a minimum 10-year practice obligation after completing the degree program.

The bill would change it so the mandatory service obligation would be determined by the Adjutant General rather than a fixed 10-year period.

47th Day: February 25, 2024 — Bills due out of committees in house of origin to ensure three full days for readings

50th Day: February 28, 2024 — Last day to consider bill on third reading in house of origin; does not include budget or supplementary appropriation bills

60th Day: March 9, 2024 — Adjournment at midnight