From the Well | February 8, 2024

It is the informal gathering place for lobbyists, reporters, constituents, and lawmakers.

Centrally situated between the chambers of the House of Delegates and Senate,

The Well is where information is often shared, alliances are formed, and deals are made.

86th West Virginia Legislature

State Capitol

February 8, 2024

West Virginia News Headlines

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PARENTAL RIGHTS: The House Committee on Seniors, Children, and Family Issues adopted legislation codifying the Parents’ Bill of Rights.

CORRECTIONS: The House Committee on Jails and Prisons passed legislation intended to improve the inmate grievance process and another that continues addiction treatment programs in regional jails.

HYGIENE PRODUCTS: The Senate Judiciary Committee passed legislation that relates to providing feminine hygiene products at no cost to female inmates and juveniles in custody.

IMPACT FEES: The Senate Government Organization Committee passed legislation involving the requirements for a county to levy impact fees for infrastructure projects.

HOME-BASED BUSINESSES: The House Committee on Economic Development and Tourism passed an amended Committee Substitute for House Bill 4943 “to facilitate the creation of home-based businesses.”

EDUCATION: The Senate Education Committee heard a presentation about Minecraft in Education.

HOSPITAL TAXATION: The Senate Finance Committee approved legislation to increase the tax rate imposed on certain hospitals.

ASSISTED REPRODUCTION: The Senate Health and Human Resources Committee passed Senate Bill 575, which creates a new article for assisted reproduction.

PREGNANCY SUPPORT: The Senate Finance Committee passed a bill to provide pregnancy-support organizations the flexibility to receive funding for various costs.

UNBORN CHILD: The Senate Health and Human Resources Committee passed an extensive bill adding four new sections to modify the Unborn Child Protection Act.

MENTAL HEALTH: The Senate Judiciary Committee passed legislation that amends and re-enacts a section of code to develop a strategic plan to divert adults and juveniles with mental illnesses, developmental disabilities, cognitive disabilities, brain injuries, and substance use disorders away from the criminal justice system and into treatment.

LAW ENFORCEMENT: The Senate Judiciary Committee passed legislation that encourages enforcement of industrial hemp and kratom laws in West Virginia.

POLITICAL SPEECH: The House Infrastructure and Technology Committee approved a bill that involves candidates’ freedom of speech and political speech on social media.

HIGH-TECH CENTERS: The House Transportation and Infrastructure Committee passed House Bill 5443, which would make permanent the taxation of property for high-technology property valuation at salvaged value.

Allowing volunteer fire departments to use fire protection funding for certain purchases

HB4696

Relating to who may diagnose post-traumatic stress disorder as a compensable injury or disease under workers compensation

The first bill, House Bill 5355, would allow volunteer fire departments to use fire protection funding for expenses associated with transitioning to the state Auditor’s online fiscal reporting system. The Committee voted to refer the bill to the Committee on Government Organization with a recommendation to pass.

The second and primary bill discussed was House Bill 4698, which addresses who can diagnose post-traumatic stress disorder (PTSD) for workers’ compensation purposes. Only licensed psychiatrists currently can make the diagnosis.

The bill proposed allowing licensed psychologists, licensed professional counselors, marriage and family therapists, and licensed social workers to diagnose PTSD provided they hold a master’s degree or higher in their field.

Members discussed the potential fiscal impact and whether to request a fiscal note.

Committee Counsel explained the bill would expand the pool of providers who can diagnose PTSD but not necessarily increase the number of people eligible for coverage.

A representative from the West Virginia Licensed Professional Counselors Association discussed the training and qualifications of licensed professional counselors (LPCs). The representative noted that LPCs routinely provide therapy for PTSD patients according to diagnostic guidelines.

It was clarified that the bill would apply only to departments that opt to add PTSD coverage to their workers’ compensation insurance. Some cities, such as Charleston, have opted in, but others have not. Concerns were raised about potential increased costs for departments and whether coverage should be mandatory.

A proposed amendment to also allow psychiatric mental health nurse practitioners to diagnose PTSD received support.

Further discussion touched on national licensing requirements, prevalence of PTSD among first responders, and the need to expand access to mental health services, especially in rural areas.

The Committee expressed overall support for the bill, but some members still had questions or concerns about costs, licensing standards, and whether the bill should proceed through additional Committees, such as Finance, considering that it has no fiscal note.

The Chairman agreed to discuss the bill further with relevant Committee chairs.

In the end, the Committee voted to report the bill, as amended, to the floor with a recommendation to pass it, but first it referred the bill to the Health and Human Resources Committee and then the Finance Committee.

Creating the Parents’ Bill of Rights

The Committee raised questions:

·    Which laws are being codified? Committee Counsel, in response to a question from Delegate Diana Winzenreid of Ohio County, said Delegate Dave Foggin of Wood County, the bill’s sponsor, might be in the best position to answer the question. Delegate Foggin, saying he was not an attorney, explained the legislation emanated from a citizens’ group that supports the legislation, although he didn’t cite what laws were being codified. Counsel did not have a ready answer.

·    Does the language in the bill establish rights that supersede “codified” laws? “A parent may bring suit against the state, any agency or locality thereof, any government official, or any person acting under color of law based on any violation of this article and seek appropriate relief, including, but not limited to, injunctive relief, monetary damages, reasonable attorneys’ fees, and court costs. A parent may also raise this article as a defense before any court or administrative tribunal.”

Delegate Foggin noted the original legislation he drafted did not include those provisions, but he was urged by parties who formulated the bill to include that language so the measure would have teeth.

Most of the debate focused on Delegate Winzenreid’s efforts to strike that amendment, saying persons could use the other non-specified areas of codified Code if wishing to bring litigation.

Delegate Larry Rowe of Kanawha County, who sponsored two other amendments seeking to clarify the legislation, was blunt: Referring to the legislation as a “ferocious roaring lion,” Delegate Rowe said HB4313 “just creates a pot of money for lawyers…. We just don’t need more litigation…. There’s a bunch of people who can be sued.”

Delegate Winzenreid and Committee Minority Chair Anitra Hamilton of Monongalia County contend the measure will affect individual school volunteers, ranging in Delegate Wizenreid’s analysis from the state Department of Education to the classroom. Delegate Wizenried argued removal of the litigation provisions would allow codified sections of code to serve as remedies.

Delegate Wizenreid and Delegate Rowe, however, focused on the “color of law” phrase and its definition, which is not included in the legislation. Moreover, Delegate Rowe said legislators heard testimony from a law firm specializing in lawsuits that involve governmental personnel.

Delegate Foggin, however, described potential litigation as a “guardrail,” although Counsel said agencies may be immune from some litigation, and that courts may have to determine jurisdiction. That term is commonly defined as “the appearance of legal authority or an apparently legal right that may not exist. The term is often used to describe the abuse of power under the guise of state authority and is therefore illegal.

The term was used in the Civil Rights Act of 1871, in which the color of law was synonymous with state action, referring to an official whose conduct was so closely associated with a state that the conduct was deemed to be the action of that state.

Delegate Wizenreid’s proposed amendment was rejected on a voice vote. Delegate Rowe withdrew his amendments.

With the clock ticking, Committee discussion focused on House Judiciary being HB4313’s next stop.

Delegate Jonathan Pinson of Mason County said HB4313 will restrict government’s intrusion into the right of parents to raise children as they determine best.

“The scope of government is to stay in its lane,” he said.

The bill was adopted by voice vote.

Creating an ombudsman program within the Division of Corrections and Rehabilitation to review complaints against a state agency or correctional facility

HB5363

Requiring the Commissioner of Corrections and Rehabilitation to continue the GOALS Programs in regional jails

HB5358 bill aims to improve the inmate grievance process by providing an independent party to review complaints. It creates a corrections ombudsman position within the Office of Inspector General to review complaints against state correctional agencies and facilities. The ombudsman would have immunity from submitting certain information outside of the Freedom of Information Act requests in order to maintain confidentiality.

Members also discussed whether the ombudsman should be required to report evidence of crimes to the proper authorities. The bill was amended to require the ombudsman to turn over evidence of a crime if found.

The fiscal note estimated it would cost about $228,000 to fund the new ombudsman office.

HB5363 relates to continuing addiction treatment programs in West Virginia regional jails. Specifically, it would amend state code to require the Commissioner of Corrections and Rehabilitation to continue the GOALS (Getting Over Addicted Lifestyles Successfully) program in regional jails if staffing and funding allows.

The GOALS program allows judges to refer felony offenders with substance-use disorders to addiction treatment in jail. If they successfully complete the program, their prison sentence can be reduced to probation.

Committee members discussed the GOALS program operates in all regional jails and is more productive than regular jail units.

The bill aims to ensure a future commissioner cannot cancel the successful program.

The bill will be referred to the Judiciary Committee.

Requiring correctional facilities to provide free feminine hygiene products

The bill would require feminine hygiene products to be provided as soon as “practicable” upon beginning menstruation but no less frequent than every eight hours after a request until menstruation ceases.

The Committee Substitute was adopted and reported to the full Senate with a recommendation for passage, but it first was referred to the Finance Committee to determine whether there would be any additional costs. The Division of Corrections already has a similar policy in place.

Removing the requirement for counties to draft and adopt comprehensive zoning ordinances

Currently, counties have seven prerequisites to levy an impact fee. The bill removes the requirement that the county must adopt a comprehensive zoning ordinance to levy an impact fee. The objective, as explained by Counsel, is to prevent county taxpayers from having to pay fees for something that won’t benefit them.

Senators had a brief discussion about the designation as a growth county, which is also a criteria.

Senator Jason Barrett of Berkeley County asked Counsel how many counties are growth counties. That status requires an increase in population in excess of 1% averaged over five years. Counsel was not sure but estimated probably no more than two or three counties are growth counties.

To facilitate the creation of home-based businesses

HB4943 aims to encourage the creation of home-based businesses by limiting certain zoning and permitting restrictions that local governments can place on them.

The discussion centered around balancing support for small home-based businesses with concerns about effects on residential neighborhoods. Specifically, the bill:

·    establishes definitions for terms like “home-based business” and “accessory structure”;

·    preserves the right of homeowners to operate home-based businesses;

·    prohibits most restrictions on home-based businesses by local governments;

·    allows for some reasonable regulations related to health, safety, transportation, waste, and noise control; and restricts fees that local governments can charge for permits and licenses of home-based businesses.

The adopted amendment clarifies definitions to ensure adherence to local sound ordinances

Hallie Mason, representing Microsoft, introduced five presenters that the Senate Education Committee invited to speak about the product, including two representatives of Prodigy Learning, which works alongside Microsoft to teach beginning, intermediate, and advanced student coding skills.

Sterling Beane, a Microsoft executive, said Minecraft’s introduction to coding captures student interest and does not require teachers to become “computer scientists.”

He said the program, which focuses on individual student learning, has cybersecurity protocols. He reiterated the coding format aligns with state Board of Education curricular standards.

Wikipedia defines coding, saying “Computer programming or coding is the composition of sequences of instructions, called programs, that computers can follow to perform tasks. It involves designing and implementing algorithms, step-by-step specifications of procedures, by writing code in one or more programming languages.”

Mr. Beane said the program will provide students with skills to enter the workforce. Those skills include aptitude JavaScript and Python programming.

Relating to contingent increase of tax rate on certain eligible acute care hospitals 

The bill also expands the types of hospitals that qualify. An eligible hospital means any inpatient or outpatient hospital conducting business in West Virginia that is not a state-owned or state-designated facility.

Assisted Reproduction Act

The bill sets forth criteria to enter into gestational or genetic surrogacy agreement and requires surrogacy agreements to be executed. The process for the agreement is specified and details the content and addresses subsequent changes in marital status in the agreement.

Definitions in the bill include:

·    “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 this 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 this 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.

Senator Mark Hunt remarked, “This is quite a bill.”

He asked Counsel whether the individuals who contract with the surrogate can request specific performance. Counsel explained that they must complete the act and that the surrogate cannot keep the child unless it’s a genetic surrogacy. That decision must be made within 72 hours.

Establishing WV Mothers and Babies Pregnancy Support Program

The bill expands the uses for funding, including capital expenditures, additional services, accreditation or licensing, and training. The bill does not provide any additional funding.

Modifying Unborn Child Protection Act

A definition of chemical abortion is added to the act and is defined as the use or prescription of an abortion-inducing drug dispensed with the intent to cause an abortion. A licensed professional is required to inform the patient of several medical risks and advise the patient that perinatal hospice care is available.

The bill contains a new section on medical emergencies and reporting requirements for attempting to induce an abortion. It creates a process of informed consent through providing printed information and the creation of an Internet website.

In case of medical emergency, an informed-consent procedure is set forth. The bill provides requirements for protection of aborted fetuses born alive.

Senator Patricia Rucker of Jefferson County, the lead sponsor, said legislators are receiving e-mails that they are restricting abortion even further and asked Counsel if that was the case. Counsel responded that it does not impact the existing limited exceptions, but it places the informed-consent language in the section that allows the limited exceptions.

Relating to Dangerousness Assessment Advisory Board multi-disciplinary study group

The Committee Substitute updates the reporting requirements for the study group, requiring a supplemental report in November 2024 and annual reports thereafter on specified topics to the President of the Senate and Speaker of the House.

Regulating certain plant-based derivatives, hemp-derived cannabinoid products and Kratom

Intended to help regulate the safety and distribution of hemp, kratom, and cannabis products in the state while embracing businesses that comply with regulations, the legislation makes some technical corrections to clarify tax collection and distribution of fees and allow the Alcohol Beverage Control Administration (ABCA) to assist in enforcement.

It will be reported to the full body with the recommendation that it passes after being referred to the Finance Committee.

Specifically, the bill:

·    seeks to regulate the safety of hemp, kratom, and cannabis products through testing and licensing requirements;

·    aims to restrict the advertising and marketing of these products, especially to minors;

·    provides enforcement mechanisms to address unlicensed operators and products that are not properly registered; and

·    anticipates generating tax revenue from an 11% tax on hemp and kratom product sales.

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

The legislation would revise existing law to state “All adjudications of delinquency, deferred adjudications, or convictions of any type had in a juvenile proceeding which involves a traffic offense (or other violations of applicable DMV statutes) shall be forwarded to the Commissioner of the Division of Motor Vehicles.”

Jennifer Rutherford, a spokesperson for DMV, said the legislation is necessary given the state’s graduated driver’s licenses. The agency can resort to its procedures to rectify matters such as speeding or moving traffic violations as required under state laws.

She also said those actions support juveniles’ “behavior modification.”

Delegate Joey Garcia of Marion County, an attorney by profession, was unsuccessful in his effort to exempt matters settled or adjudicated “out of court” from the bill’s provisions.

Committee Counsel explained several bills, as endorsed by DMV, are being considered this session.

It appears legislation is required to effectuate DMV’s proposed legislation embodied in HB5238.

Certain motor vehicle violations could be considered felonies, according to Counsel, and, unlike misdemeanors, would fall under criminal jurisdiction.

When asked about the need for the legislation, Ms. Rutherford said, “We’re not being given the information from the courts,” meaning DMV isn’t in compliance with laws affecting the agency.

Relating to impaired driving not eligible for deferred adjudication under state motor vehicle laws

According to Committee Counsel, the Department of Motor Vehicles “Interlock” program for first DUI offenses remains.

Relating to requirements imposed on social media companies to prevent corruption and provide transparency of election-related content made available on social media websites

The bill has two primary purposes:

·    provides equal opportunities for all candidates and political parties to speak without policy or partisan-based censorship; and,

·    ensures elections-related content hosted, posted, and made available on social media websites is not monetized or otherwise used or manipulated for nefarious purposes.

HB4191 would be cited as the Social Media Integrity and Anti-Corruption in Elections Act. Its provisions would be enforced by the state Attorney General.

According to a legislative finding, “West Virginia has a compelling interest in ensuring transparency and provision of things of value that advocate for the election or defeat of candidates in West Virginia. Narrowly tailored restrictions on election-related content have long been allowed under First Amendment jurisprudence including the ‘equal opportunity’ provisions applied to the newspaper and print industries and the ‘equal time’ provisions applied to the television broadcast industry and enforced by the Federal Communications Commission. With the rise of social media platforms over the last decade as major providers of election-related content, there is an unmet need for legislation ensuring transparency and equity.”

The Committee amended the bill so the term “candidate” is defined to include both an individual seeking office and one who has been nominated for a position on a ballot in a federal election recognizing that federal, state, and local candidates may all appear on a ballot in a federal election.

The legislation also defines “untraceable messaging” as the transmission of digital content created or promoted by the social-media platform which is not retrievable or reviewable by users, researchers, or any other person or entity, after the message has been first viewed.

Social-media platforms would be required to ensure the “accuracy of published Election Content which including factors such as ‘Get Out The Vote’ or ‘GOTV’ information; polling place locations or hours, voter identification requirements, election security and integrity, and other matters regarding voting.”

The entities also would be required to provide campaign finance reports to the Attorney General, detailing how the social media platform sought to influence “a user’s understanding or opinion regarding any candidate, party, or political party, in the State of West Virginia. Such disclosure report shall be made within (48) hours of the online activity in the same manner as reporting other types of electioneering communications … without regard to the timeframe or minimum expenditure threshold requirements (set by law).”

If a social-media platform terminates, suspends, or restricts access of a candidate, the company would have to provide reasons or grounds for the action, the date termination or suspension is effective, and the means of appeals of the social-media platform decision.

The state Election Commission is authorized to affirm, modify, or overturn any decision made pursuant to this section by the social-media platform.

Termination or suspension of a social-media account for matters such as pornography, matters illegal under state law, and attempted fraud regarding elections could result in fines up to $100,000.

The Attorney General could seek injunctive relief to enforce the act.

Clarifying that electronic data processing services are to be included in the valuation of specialized high-technology property

Entities affected are those that include the hosting and processing of electronic data as part of a data center and high-performance data computing to process data and perform complex computation and solve algorithms at high speeds in connection with digital, blockchain, and/or artificial intelligence technologies.

According to information discussed in Committee, four such centers are affected, with the possibility of expansion.

Two centers are in Preston County, while other centers are in Tyler and Marion counties.

A spokesperson for the industry said West Virginia is favorable for that type of business because of available infrastructure (such as abandoned mines), personnel, and Broadband, all enhanced by the state’s weather. It is advantageous as compared to sites in places such as Texas or states having colder winter climates.

The spokesperson said smaller companies, having decentralized operating structures, find West Virginia attractive for expansion compared to larger companies, which demand more infrastructure and whose power needs cannot be met without building substations. Smaller companies procure power from consumer power companies.

Those companies, the Committee learned, focus on third-party hosting and, in response to a Committee member’s question, focus on Bitcoin, which is described as a type of currency that exists only online. That means that unlike U.S. dollar bills, there are no physical bills or coins associated with Bitcoin, which is 100% digital.

Bitcoin mining is the process of validating the information in a blockchain by generating a cryptographic solution that matches specific criteria. When a correct solution is reached, a reward in the form of Bitcoin and fees for the work is given to the miner(s) who reached the solution first.

According to Committee testimony, “Bitcoin mining” will be obsolete by 2140, meaning transition to online currency.

Delegate Paul Espinosa of Jefferson County lamented the failure of a 2022 constitutional amendment that would have removed taxation on business property, machines, and equipment, but he noted the tax reductions provided to high-technology companies locating in the state.

35th Day: February 13, 2024 — Last day to introduce bills in the House. House Rule 91a does not apply to originating or supplementary appropriation bills, and does not apply to Senate or House resolutions or concurrent resolutions

41st Day: February 19, 2024 — Last day to introduce bills in the Senate. Senate Rule 14 does not apply to originating or supplementary appropriation bills and does not apply to Senate or House resolutions or concurrent resolutions

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