From the Well | March 5, 2024

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86th West Virginia Legislature

State Capitol

March 5, 2024

West Virginia News Headlines

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FOSTER INFORMATION: The Senate Health and Human Resources Committee adopted House Bill 4975, which establishes a foster parent information system.

ABUSE, NEGLECT REPORTING: The Senate Health and Human Resources Committee passed legislation that provides that the Department of Human Services may provide the Foster Care Ombudsman the identity of a person who made a report of abuse or neglect.

FIRE-RELATED FEES: The House Government Organization Committee amended Senate Bill 738, which authorizes the state Fire Marshal to promulgate emergency rules related to fee increases relevant to that office.

NONPROFIT GAMBLING: The House Government Organization Committee passed legislation that recognizes the need for charitable and public service organizations to have a way of raising funds online.

MEDICAL EDUCATION: To develop more medical personnel, the House Government Organization Committee adopted legislation to allow a prescribed number of members of the Army National Guard or Air National Guard to be entitled to payment of tuition and fees during his or her service in the National Guard.

INSURANCE BENEFITS: The House Finance Committee passed legislation that involves requiring pricing and payment transparency from pharmacy benefits managers contracting with PEIA.

DRUG RULES: The House Finance Committee passed legislation that aims to clarify and regulate the manufacturing, processing, distribution, and sale of hemp-derived cannabinoid and kratom products in West Virginia.

ABORTION: The House Health and Human Resources Committee passed legislation to modify the Unborn Child Protection Act.

MANAGED CARE: The House Health and Human Resources Committee approved legislation that requires automatic enrollment of the substance-abuse disorder population into managed care.

SITE READINESS: The Senate Economic Development Committee passed legislation that increases the maximum amount for annual matching grants available to state and local governments through the Department of Economic Development’s site-readiness grant program.

LITIGATION FINANCING: The House Judiciary Committee passed legislation updating the state’s Consumer Protection Act regarding litigation financing agreements.

TECHNOLOGY PURCHASES: The Senate Government Organization Committee passed a bill to amend code related to state government purchases of technical infrastructure.

TOBACCO: The House Judiciary Committee passed legislation that eliminates statutory conflicts with the Federal Pact Act and expands the application to cigarettes to the broader category of tobacco products.

DENTAL CARE: The Senate Health and Human Resources Committee adopted legislation that focuses on requiring health benefits plans to cover necessary dental procedures that are necessary because of cancer treatment.

BIOMARKER TEST COVERAGE: The Senate Health and Human Resources Committee approved a bill that involves providing health insurance coverage for biomarker testing.

CHILD PORNOGRAPHY: The House Judiciary Committee dealt with legislation aimed at prohibiting the creation of artificially generated child pornography.

Further, the Senate concurred in the House amendment to SB539 (Creating cold case database)

The Judiciary Committee reported SB190 (Modifying definition of sexual contact) and SB280 (Allowing teachers in public schools to discuss scientific theories) to the full House.

The Finance Committee reported SB872 (Relating to county fire service fees) to the full House.

THIRD READING

SB160 (Updating language and increasing penalties for indecent exposure) postponed one day

·     SB200 (Budget Bill) House struck everything after the enacting clause and inserted the House version of the budget

·     SB504 (Relating to felony offense of sexual intercourse, intrusion, or contact with student) passed 94-1-5

·     SB623 (Requiring DMV to provide images of certain individuals to Secretary of State for voter identification purposes) passed 93-2-5

·     SB714 (Transferring duties and licensing from Board of Osteopathic Medicine to Board of Medicine) passed 94-2-4

SECOND READING

·     SB146 (Creating adult education task force) The House Education Committee amended the bill and the bill was advanced to third reading

·     SB438 (Modifying roster requirements of authorizing entities) advanced to third reading

FIRST READING

The following bills were read a first time and advanced to second reading:

·     SB 2 (Authorizing DEP to promulgate rules)

·     SB 36 (Authorizing Department of Homeland Security to promulgate legislative rules)

·     SB 50 (Tax Department rule relating to privilege tax on sales of hemp-derived cannabinoid and kratom products)

·     SB 155 (Creating Violent Crime Prevention Act)

·     SB 166 (Updating contested elections procedures)

·     SB 170 (Relating to compensable diseases of certain firefighters covered by workers’ compensation)

·     SB 445 (Reducing certification periods and renewal fees for EMS personnel)

·     SB 587 (Enabling State Fire Commission to propose legislative rules)

·     SB 632 (Relating to Dangerousness Assessment Advisory Board multi-disciplinary study group)

·     SB 686 (Prohibiting actions for damages or attorney’s fees in cases involving Board of Risk and Insurance Management)

·     SB 732 (Requiring cooperation between law-enforcement agencies and military authorities)

Relating to establishing a foster parent information system

According to Committee Counsel, HB4975 is amended to provide direct reference to the foster parent information system being Web based. Other changes, according to Counsel, relate to Child Protective Services employees including reports on the time required to log data on the Web-based portal as well as “time taken to respond” to inquiries.

The Senate-amended bill also includes a $250,000 fiscal note, although Senator Mark R. Maynard of Wayne County noted the House set aside funds for that purpose.

The legislation requires the Department of Human Services to incorporate a foster parent information system into the existing child welfare information technology system through the purchase of additional products that communicate with and pull information from the existing child welfare information technology system.

The Web-based system also is to have the capacity to archive communications for the purpose of running reports on responsiveness by parties in the child welfare system.

Relating to confidentiality of child-care records and the Foster Care Ombudsman

The bill says information released by the Department of Human Services “may not include the identity of a person reporting or making a complaint of child abuse or neglect except when such information and records are released to the Foster Care Ombudsman, or its designee, acting in the course of their official duties.”

According to Committee Counsel, the Senate-passed version of HB5609 makes technical changes in the House bill, ensuring that abuse or neglect proceedings information is largely confidential with the noted exception of its provision relating to the Foster Care Ombudsman.

Authorizing State Fire Marshal to promulgate emergency rules relating to increased fees

The Committee adopted an amendment proposed by Delegate Jim Butler of Mason County. The amendment caps any fee increase at 50% of an existing fee.

Delegate Butler, commenting on his amendment, said, “We don’t want them to raise the fees to whatever. At least it puts a cap on it.”

The Committee struck bill language saying fees hadn’t been increased “since 2005,” which was antecedent to emergency rules. That provision read, “The State Fire Marshal has not raised the fees for its services since 2005, making it difficult to employ sufficient personnel to render new services mandated by statute. Therefore, the State Fire Marshal may promulgate emergency rules relating to fees….”

The amendment and amended bill were adopted by voice vote.

Creating online charitable raffles

According to the bill, a “Charitable or public service activity or endeavor” means any bona-fide activity or endeavor that directly benefits a number of people by:

·     Contributing to educational or religious purposes;

·     Relieving them from disease, distress, suffering, constraint, or the effects of poverty;

·     Increasing their comprehension of, and devotion to, the principles upon which this nation was founded and to the principles of good citizenship;

·     Making them aware of, or educating them about, issues of public concern so long as the activity or endeavor is not aimed at supporting or participating in the campaign of any candidate for public office;

·     Lessening the burdens borne by government or voluntarily supporting, augmenting, or supplementing services which government would normally render to the people;

·     Providing or supporting nonprofit community activities for youth, senior citizens, or the disabled;

·     Providing or supporting nonprofit cultural or artistic activities; or

·     Providing or supporting any political party executive committee.

“Charitable or public service organization” means a not-for-profit benevolent, educational, philanthropic, humane, patriotic, civic, religious, fraternal, or eleemosynary, incorporated or unincorporated associations or organization. The term also can include a volunteer fire department, rescue unit, or other similar volunteer community-service organization or association. It does not include any nonprofit association or organization organized primarily to influence legislation or support the campaign of any single candidate for public office.

According to Committee Counsel, all changes were technical.

Revising service obligation for certain doctoral medical degree programs

According to the legislation, the educational programs must lead to a certificate, undergraduate degree, master’s degree, doctor of medicine, or doctor of osteopathic medicine, and the recipients must attend any accredited community and technical college, college, university, or business, career-technical, vocational, trade, or aviation school in West Virginia,.

Accordingly, “Not more than two members a year may be selected by the Adjutant General to receive payment for either a Doctor of Medicine or Doctor of Osteopathic Medicine degree program. Any candidate selected for this program must remain a member of the Army National Guard or the Air National Guard after receiving a Doctor of Medicine or Doctor of Osteopathic Medicine degree for a mandatory service obligation as prescribed by the Adjutant General.”

The Committee adopted an amendment by Delegate Eric Brooks of Summers County to specify that the “mandatory service obligation” be set as six years rather than the existing 10 years, effectively negating the Adjutant General in prescribing the years of “service obligation.”

Committee leadership endorsed the amendment. Committee Vice Chair Pat McGeehan of Hancock County called it a “reasonable compromise.” Delegate Brooks used similar terms in describing his amendment. Delegate Rick Hillenbrand of Hampshire County and other Committee members, including Delegate Hollis Lewis of Kanawha County, who noted the six-year term is consistent with military enlistment periods.

Requiring pricing and payment transparency from pharmacy benefits managers contracting with PEIA

The legislation requires pharmacy benefit managers to report additional information to PEIA on a quarterly basis. It also removes requirements that PEIA keep the reported data confidential. The bill sets requirements for what PEIA must do in its contracts with pharmacy-benefit managers, such as disclosure requirements. It includes language about reimbursement rates for West Virginia pharmacies.

The amendment to SB453 removes the language at the end of the bill that defines a West Virginia pharmacy as a “domestic business entity as registered with the West Virginia Secretary of State.” By removing that definition, the amendment takes away the specificity around what constitutes a West Virginia pharmacy, according to the bill.

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

The bill defines terms and sets requirements for labeling, testing, and licensing  products. It also establishes penalties for violations. The bill aims to make the regulations for those two types of products consistent and clear. It gives regulatory authority over these products to the Commissioner of Agriculture and involves the Tax Commissioner and Alcohol Beverage Control Administration for tax collection and enforcement purposes.

Amendments made to the bill clarified the definition of hemp-derived cannabinoids, removed language referencing federal concentration limits, and made technical corrections to statutory references. A key amendment proposed striking the Alcohol Beverage Control Administration’s enforcement role, citing its lack of enforcement actions so far. It proposed switching enforcement responsibilities to the Department of Agriculture with support from local law enforcement.

Another amendment addressed funding, striking the 30% deposit into the ABC enforcement fund and changing the remaining 65% deposit to 95% for the Agricultural Fees Fund, with a provision for excess funds of more than $750,000 annually going to general revenue. That was to ensure adequate and flexible funding for the Department of Agriculture to operate the regulatory program.

Modifying Unborn Child Protection Act

The bill originally required informed consent prior to an abortion, including viewing an ultrasound, being informed of gestational age, and providing information to a health department website.

Delegate Mike Pushkin of Kanawha County proposed an amendment that would exempt victims of rape and incest from being offered an ultrasound. Delegate Pushkin’s amendment was defeated on a roll-call vote.

Delegate Tully’s amendment removed the requirement that perinatal palliative care information must be provided to the patient from the Department of Health’s website and that the patient is made aware of that information. Delegate Tully’s amendment also removed that information about reversal of chemical abortions must be provided. The Delegate said research is questionable about the effectiveness of reversals of chemical abortions.

Requiring automatic enrollment of substance-abuse disorder population into managed care

HB820 requires the automatic enrollment of Medicaid patients receiving treatment at inpatient substance-use disorder centers into managed-care organizations. It requires the Bureau for Medical Services Medicaid to develop a work plan for enrollment and submit it to the Legislative Oversight Commission by September 30, 2024.

The legislation also requires the Bureau to develop performance outcome measures for these substance-use disorder treatment providers and submit the plan by August 30, 2024. Implementation is set for by January 1, 2025. Finally, it requires the Bureau to develop a managed-care quality program for substance-use disorder providers based on national standards and measures and submit the related work plan to the Oversight Commission by September 30, 2024.

Creating the Certified Sites and Development Readiness Program

HB4822 increases the maximum amount for annual matching grants available to state and local governments through the Department of Economic Development’s site-readiness grant program. The maximum grant currently is $25,000, but the bill would increase the amount to $75,000.

The grants help government improve selected sites to make them more attractive for development and help leverage other funds.

Updating Consumer Credit and Protection Act

SB850 updates West Virginia’s litigation financing article to expand disclosure requirements for litigation financing agreements to commercial litigation in addition to consumer litigation. It requires attorneys who use litigation financing to disclose the information to their clients and ensures that repayment of financing cannot be contingent on the outcome of the case.

The legislation also limits certain consumer protections, such as interest-rate caps applying only to natural persons and not commercial entities. The bill aims to increase transparency around third-party litigation financing agreements for both consumers and businesses.

Relating to procurement by state spending units

The legislation says the state Purchasing Division Director shall solicit, on behalf of spending units, sealed bids for the purchase of technical infrastructure estimated to cost more than $250,000. The bill says the Director shall delegate the procurement of technical infrastructure estimated to be $250,000 or less to the spending unit. Current law requires bids if costs exceed $25,000.

Technology services includes all information systems and technology services. Cloud computing is included in the definition of technology services.

Senator Chandler Swope of Mercer County spoke in support of the bill, saying he has worked to centralize the governance of Information Technology (IT) infrastructure.

“This bill is a step in the right direction for all our IT infrastructure,” Senator Swope said.

Providing safeguards for online sales of tobacco products

Delegate Todd Kirby of Raleigh County asked whether the online sales prohibition of THC, hemp-derived cannabinoid, and Kratom was new. Counsel said the proviso prohibiting that type of product would prevent delivery of those products and those products gaining a foothold in West Virginia although some other states allow it.

Delegate Laura Kimble of Harrison County proposed an amendment that would make the products illegal rather than prohibit from online sales. One Delegate pointed out the amendment would make products illegal that the Legislature made legal just last year. The amendment passed 10-9.

Delegate Brandon Steele of Raleigh County said, “We are jeopardizing the entire bill. The Senate will not accept it.” He further added that enforcement agencies have had no input on the change in the bill. The strike-and-insert amendment, as amended, passed 13-8.

Creating the Oral Health and Cancer Rights Act

Bill provisions affect the Public Employees Insurance Agency (PEIA), Medicaid, private insurance carriers (individual or group accident and sickness insurance) as well as hospital services corporations, dental service corporations, health service corporations and health-maintenance organizations.

As outlined in HB4956, various insurance policies, plans or contracts must include coverage for oral health procedures that are the result of cancer treatments including surgery, chemotherapy, biotherapy, pharmacology, immunotherapy, or radiation. The bill specifies coverage to include “evaluations, examinations, patient education, laboratory assessments, medications, treatments, restoration, rehabilitation, medical devices, and prosthesis needed to obtain cancer treatment or restore whole or partial function associated with eating, breathing, voice, speech, and swallowing related to a cancer diagnosis.”

Treatment would be based on a specific billing identifier.

Relating to providing health insurance coverage concerning biomarker testing

Following considerable discussion, the Committee voted to move the legislation to the full floor with a second reference to Senate Finance and a fiscal note request.

Most Committee discussion centered on whether HB4753 should include “pre-diagnostic” biomarker testing rather than the bill’s emphasis on use of biomarker testing to discern best medical treatments to address actual diagnoses.

According to Delegate Steve Westfall of Jackson County, who appeared before the Committee, given that most state residents have Public Employees Insurance Agency (PEIA) or Medicaid, meaning about 25% of insureds have private insurance coverage, the approach covered in the bill will produce greater efficient use, meaning that “pre-diagnosis” would prove cost-prohibitive to PEIA and Medicaid.

Senator Patricia Rucker of Jefferson County, however, asked several questions about “pre-diagnostic” testing proving greater future utility, especially in cases where results are unclear.

Delegate Westfall and Senate Health, Human Resources Chairman Mike Maroney of Marshall County, and Vice Chairman Tom Takubo of Kanawha County said “false positive testing” results could, in fact, lead to greater costs.

Senator Rucker wondered whether the legislation, as adopted, “does anything” different from current medical protocol and practice given its “post-diagnostic” emphases.

Delegate Westfall and Senators Maroney and Takubo argued that medical intervention based on the use of biomarker testing for “post-diagnostic” purposes would result in “guiding” pinpointed, focused treatment, which they said was the greater part of value of biomarker testing.

“We can’t treat until we know what we’re treating,” Senator Takubo said. He and Senator Maroney, both physicians, said a “shotgun” approach to biomarker testing could prove more costly.

Delegate Westfall reiterated his chief point: HB4753 would serve as a means to introduce required biomarker testing legislation.

Delegate Westfall, while stating the legislation as passed by the House, had “negative” fiscal impact, he said PEIA officials hadn’t signed off on the approach. State Medicaid officials see the proposal as revenue-neutral, leading Delegate Westfall to say the bill provides a means for “all parties to be on the same page” rather than expanding biomarker pre-diagnostic coverage.

All biomarker testing has to be FDA-approved.

HB4753 includes technical modifications, according to Committee Counsel.

Prohibiting creation, production, distribution or possession of artificially generated child pornography

The strike-and-insert amendment added to the bill consisted of the entirety of HB4654, frequently referred to as the “book-ban” bill that the Senate has not yet taken up.

HB4654 passed the House and would remove bona-fide schools, public libraries, and museums from the list of exemptions from criminal liability relating to the distribution and display of obscene matter to minors. The bill would create criminal penalties for librarians, teachers, and museum curators or staff who display or distribute material that are deemed to be obscene.

There was heated discussion over the lack of transparency and a request that Chairman Tom Fast of Fayette County rule the amendment not germane to the bill. The Chairman ruled that it was germane, and the Committee voted to sustain his ruling.

If the bill as amended passes the House of Delegates, it will go back to the Senate for concurrence. One Delegate said “our Senate comrades, and that’s the right term,” may choose to pass the bill or not.