From the Well | January 29, 2024

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86th West Virginia Legislature

State Capitol

January 29, 2024

West Virginia News Headlines

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ALCOHOL RULES: The Senate Judiciary Committee considered and passed Senate Bill 50, a “rules bundle” containing 12 total rules.

LICENSURE: The House Government Organization Committee approved House Bill 5117, which makes a one-word change in laws relating to persons who seek to be licensed by state Boards of Examination or Registration for occupational licensing fees.

BUDGET: Dr. Sherri Young, Secretary of the West Virginia Department of Health, gave a budget presentation to the Senate Finance Committee.

AGENCY UPDATE: Cynthia Persily, Secretary of the West Virginia Department of Human Services, outlined her agency’s organizational structure and leadership team.

INTERNET REGULATION: The House Judiciary Committee passed Committee Substitute for House Bill 4867 on a voice vote to require age verification methods to prevent minors from accessing material harmful to children on the Internet.

SHOPLIFTING LAW: House Bill 4998 quickly passed the House Judiciary Committee, intended to modify a unique penalty for third-offense shoplifting that requires a mandatory one year spent in confinement with no probation.

TRANSPORTATION: The Senate Transportation and Infrastructure Committee legislation that makes it unlawful for any driver from causing smoke or other visible emissions that obstruct visibility of other drivers.

ABSENTEE VOTING: House Judiciary Committee Chair Tom Fast of Fayette County assigned a subcommittee to consider Committee Substitute for House Bill 4016, which would prohibit the delivery of any absentee ballot application to any voter except when the voter specifically requests it.

Relating to the creation of ‘Jaycie’s Law’

The bill’s legislative finding states “parents of children throughout any age in middle or high school should be given the utmost support, because they face a unique set of challenges and circumstances on their road to graduation. School systems in West Virginia shall implement programs to provide educational support to those students with children at any age through graduation. The goal of this act is to assist these students to stay in school while providing enough time for proper medical recovery after the birth of the child. “

The county board policy must “excuse all absences due to pregnancy or parent-related conditions, including absences for labor, delivery, and recovery.”

The county board policy must provide:

·     at least eight weeks of excused absences for a mother giving natural vaginal birth or birth of the student’s child through a C-section.

·     excused absences for antenatal care by recommendation of the medical provider;

·     two weeks excused absence for the father of the child;

·     assurance that the parent remains on track for graduation by providing academic support options, including, but not limited to, work provided virtually and a homebound instructor for weekly visits to ensure accountability;

·     excused absence for parenting students whose children are sick while also providing a doctor’s excuse for that child.

The bill was amended so county boards may refer affected students to services that a “pregnancy help organization” may provide.

As defined in code, those organizations refer to “maternity homes, adoption agencies, and social services agencies that provide material support and other assistance to pregnant women.” State law delineates that these organizations “do not perform, prescribe, refer for or encourage abortion, as defined above, nor do they affiliate with any organization that performs, prescribes, refers for, or encourages abortion.”

Delegate Mike Pushkin of Kanawha County sought to remove the “pregnancy help organization” provisions from the bill, although agreeing to revised amendment language making such referrals “permissive.”

Delegate Pushkin contends “crisis pregnancy centers,” which are included under the definition of “pregnancy health organization,” may be mistaken for medical facilities, although medical staff may not be — most often are not — on premises.

Other Delegates said, based on their knowledge, that crisis pregnancy centers provide services relating to parenting, as well as providing supplies for parents and infants, including diapers and baby food or formula.

Based on a response by Committee Counsel, “refer” means a school employee, likely a counselor, could provide handouts or other written resources relating to “pregnancy health organizations.” The bill, as introduced, required “reference” to these organizations, although some Committee members said the referral might create liability for a county board in terms of implied transportation to the facilities or related considerations.

The Committee adopted an additional amendment, offered by Delegate Heather Tully of Nicholas County, which removed statutory language stating a doctor’s excuse was required for “every absence” as delineated in the bill. The revised language requires such absences in cases of medical conditions or follow-up after the return to school for matters relating to birth complications.

According to Committee Counsel, the measure grew out of a social worker’s concern that some county boards require students, after birth of a child, to return to school within one week and that requirement is onerous also in terms of infant health appointments, child care, and other considerations.

Following the landmark decision in United States Supreme Court’s 2022 Dobbs v. Jackson Women’s Health Organization, which held the United States Constitution does not confer a right to abortion, some lawmakers contend “crisis pregnancy centers” have been criticized as discouraging abortion and/or appearing to provide medical care.

Authorizing Department of Revenue to promulgate legislative rules

The first set of rules for SB 50 were from the Alcohol Beverage Control Commission (ABCC). The bills did not go through the Legislative Rule Making Process and are being addressed by the Legislature during the 2024 session.

The first ABCC rule discussed was 175 CSR 02 regarding private club licensing. Currently, the rule allows employees only 30 minutes to vacate the premises after alcohol sales end. The proposed change would extend the time to one hour both after sales end and before they begin except for employees only using offices. It also struck a subsection requiring all entertainment, including jukeboxes, to cease 30 minutes before alcohol sales end.

The next ABCC rule was 176 CSR 01 on non-intoxicating beer licensing and operations.The only change is to allow distributors or resident brewers in a limited capacity to rotate stock, merchandise, price, and pre-sell non-intoxicating beer at licensed retail establishments on non-intoxicating beer days.

The SB50 rules bundle, including both ABCA rules, passed.

Relating to the waiver of initial licensing fees for certain individuals

As explained by Committee Counsel, and consistent with increasing efforts by the Legislature to ensure agencies have rulemaking authority, the bill allows affected agencies to develop rules rather than require rules to be developed. As stated by Counsel, “Chapter 30” agencies will not have to develop a “needless rule.” Moreover, according to Counsel, affected agencies operate with this authority based on existing law.

(Rulemaking is overseen by the 14-member Legislative Rulemaking Review Committee, which meets during the Legislature’s interim meetings.)

Accordingly, the revised bill language states, “The board or licensing authority may propose rules for legislative approval to implement the provisions of this section.”

The bill defines “low-income individuals” as individuals in the local labor market whose household adjusted gross income is below 130 percent of the federal poverty line. This term also includes any person enrolled in a state or federal public assistance program, including, but not limited to, the Temporary Assistance for Needy Families Program, Medicaid, or the Supplemental Nutrition Assistance Program.

The term “military families” is defined as any person who serves as an active member of the armed forces of the United States, the National Guard, honorably discharged veterans of those forces, and their spouses. The term also includes surviving spouses of deceased service members who have not remarried.

A final bill provision states those seeking waivers of initial occupational licensing fees must “apply to the appropriate board or licensing authority in a format prescribed by the board or licensing authority. The board or licensing authority shall process the application within 30 days of receiving it from the applicant.”

Relating to use of criminal records as disqualification from authorization to practice particular profession

SB493 relates to the use of criminal records as disqualification from authorization to practice a profession or occupation by a board, authority, or other agency authorized to issue licenses, certifications, registrations, or other authorizations to engage in a particular profession or occupation.

According to Committee Counsel, in response to a question regarding “misuse” of the statute, the bill’s safeguards include “no effort for rehabilitation” for persons seeking to enter into licensed professions.

The bill has a second reference to the Senate Judiciary Committee.

Secretary Young said the Bureau for Public Health makes up 78% of the department’s budget. She then detailed each of the offices under the Bureau for Public Health and their responsibilities. Those included offices related to environmental health, maternal and child health, laboratories, nutrition services, and more. She also discussed the department’s priorities around chronic disease prevention, improving access to care, and other issues identified in the State Health Assessment.

Secretary Young then discussed the department’s budget in more detail. She noted that about 50% of the department’s $409 million budget comes from federal revenue. Committee members then asked questions about various parts of the budget, such as funding for the Medical Examiner’s Office, vaccines, and EMS providers.

Chris Nelson from the Office of the Inspector General then provided an update to the Committee on OIG activities and budget needs. He discussed challenges, such as vacancies. They have now been reduced from 30 to 7, he said. He outlined potential budget requests, including funds for a case-management system.

Committee members then questioned Secretary Young and Mr. Nelson about rape-kit backlogs, facility needs, and partnerships with medical schools. Secretary Young committed to providing more detailed information to the Committee on various department divisions and programs.

She followed the West Virginia Department of Health budget presentation.

The Secretary provided funding sources and appropriation histories for each bureau. She noted vacancies, especially in Child Protective Services and economic services.

When discussing Medicaid, Secretary Persily outlined required versus discretionary services and various waiver programs. She noted drivers, such as a public health emergency, could affect the budget. Proposed solutions included increasing the Medicaid managed care organization tax rate.

She gave updates on the bureaus for family assistance, social services, behavioral health, drug-control policy, and child support enforcement. She noted key programs and performance metrics for each.

Committee members then asked numerous follow-up questions. Topics discussed in depth included workforce recruitment challenges, Medicaid rates, waiver programs, placements of children in and out of state, and ensuring that funds result in better wages for direct-care workers.

Require pornography websites to utilize age verification methods to prevent minors from accessing content

Material harmful to minors is defined explicitly in the bill, stating body parts and actions.

Delegate Evan Hansen of Monongalia County pointed out that “obscene matters” already are defined in code simply as “sexually explicit content” and includes no graphic detail. Delegate Geno Chiarelli of Monongalia County, the bill’s lead sponsor, said the specificity of explicit content is important to the bill.

Asked about applicability to cable television, Committee Counsel responded that the bill is specific to the Internet, and website activity does not address cable television.

The Secretary of the Department of Human Services is to implement rulemaking and provisions of age verification and to work with the websites.

Modifying penalties for third-offense shoplifting

Delegate Brandon Steele of Raleigh County noted that current code has the effect of making the judge act as the Parole Board.

After confirming that the judge could still impose a sentence of up to 10 years, Counsel said, “This bill is just allowing discretion.”

Prohibiting certain additives in diesel fuel

The bill, as adopted by Committee, makes it unlawful for any driver — whether owning the driven vehicle or not — from causing smoke or other visible emissions that obstruct visibility of other drivers based on altered or retrofitted devices on vehicles through “any type of modification.”

The Committee also removed possible jail time penalties for those convicted of violating the statute’s provisions, although fines of $100, $200, and $500 remain for first, second, and third offenses, respectively.

Senator Robert Karnes of Randolph County said the legislation, especially the new Committee version, would be a slam to the coal industry for what he termed the practice of “roll with coal.”

Senator Chandler Swope of Mercer County said he found the mandatory jail sentence troubling, especially because bill provisions apply to the driver, not the vehicle owner.

Senator Mike Oliverio of Monongalia County, in response to the assertion the legislation is “anti-coal,” said he’d support a “mom driving a minivan” whose visibility could be obstructed by a modified vehicle. He said one role of the Committee was to ensure a safe driving environment for drivers, which could be diminished by modified vehicles.

Senator Karnes, in response, asked Counsel whether there were any examples of drivers being fined for “smoke emissions.” Counsel responded, while that detail had not been researched, an officer could cite a driver for such a violation if it contributes to an incident involving a modified vehicle.

Senator Karnes was the sole member to support a roll-call amendment to make bill provisions effective on the date determined by the Legislature.

He also stated the legislation amounts to denying citizens’ rights of speech to make “political statements.”

Senator Mike Stuart of Kanawha County, who said he is “pro-coal,” said the legislation addresses what might be considered a “public nuisance.”

According to Committee remarks, a Senator said the bill is needed because it could lead to driving incidents, which the Counsel, in answer to a Committee member’s question, could be considered a driving violation.

Prohibiting the delivery of unsolicited absentee ballot applications to any person who has not specifically requested one from the County Clerk

The bill states the application for voting absentee shall be available at the office of the county clerk and online at the official website of the Secretary of State. The bill would make it unlawful for any person, including any election official, to mail or deliver an application for an absentee ballot except when that voter requests it.

The bill would prohibit the delivery of any absentee ballot application to any voter except when the voter specifically requests it.

Chair Fast appointed Delegate Chris Pritt of Kanawha County, Chair; Delegate Todd Kirby of Raleigh County, and Delegate Joey Garcia of Marion County.

The Committee Substitute made several changes, including an allowance that an individual could receive an absentee application for immediate family members or a caregiver. It allowed a person to distribute no more than 10 applications.

Misdemeanor penalties were added, including a higher penalty for election officials than for the general public. Counsel pointed out that the Committee Substitute was more narrowly tailored than the original bill and creates exceptions.

Delegate Evan Hansen of Monongalia County asked a representative of the West Virginia County Clerks Association to describe the absentee process. She responded that the process begins with the application, a public document, which must be completed, returned timely, and verified by the County Clerk.

“No one receives an absentee ballot without an approved application,” she said, adding that County Clerks have not experienced problems with the process and, with the exception of 2020, only a small percentage of voters use the absentee process.

20th Day: January 29, 2024 — Submission of Legislative Rule-Making Review bills due

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