From the Well | May 10, 2023

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

May Interim Meetings/Huntington

May 10, 2023

·     FOSTER CARE: The state’s Foster Care Ombudsman Office Director told legislators about the office’s responsibilities.

·     CORRECTIONS: West Virginia’s Corrections chief outlined inmates’ grievance procedure.

·     BROADBAND: The Joint Committee on Technology and Infrastructure heard a detailed presentation Sunday from a Frontier Communications official about the company’s plans to deliver broadband service.

·     HIGHER EDUCATION: Marshall University President Brad Smith says the state’s colleges and universities need to find a way to offer more online degrees.

·     CYBER SECURITY: A Marshall University professor said the school’s Department of Cyber Forensics and Security is prepared to help state and local government.

·     ARTIFICIAL INTELLIGENCE: Artificial intelligence (AI) proponents told lawmakers about areas where state legislatures are likely to try to regulate the fast-developing technology.

·     DRUG RECOVERY: Dr. Stephen Loyd, an expert on addiction, told the Joint Standing Committee on Health about a potential opioid abatement model.

·     PUBLIC SCHOOLS: A state Senator said teacher training and professional development will require a “change in mindset” if House Bill 3035, the Third Grade Success Act, is to be implemented effectively.

·     HOUSE OF DELEGATES: Monongalia County resident Anitra Hamilton is the newest member of the West Virginia House of Delegates.

·     SECRETARY OF STATE: Brian Wood, currently in his fourth term as Putnam County Clerk, announced his Republican candidacy for Secretary of State in 2024.

Deputy Secretary Mullins gave the Commission an overview of the department’s full continuum of care for mental health. She said the full continuum of care includes prevention, early intervention, and more intensive services. She said best practices, state and federal law, and court orders guide the department’s work.

Deputy Secretary Mullins said West Virginia ranks first in the nation for unmet treatment needs. One in four adults in the state has a mental illness, she said. In 2019, 36% of West Virginia’s youth reported being sad or feeling hopeless, and 20% considered suicide.

Deputy Secretary Mullins provided the Commission with an overview of the services provided by the department in the areas of present and early intervention; outpatient services; psychiatric hospitals and acute care; psychiatric residential treatment; child residential services; crisis stabilization; intermediate care facilities; group residential facilities; and forensic group homes.

In the area of substance-use disorder, Deputy Secretary Mullins said West Virginia had available 217 treatment beds. As a result of legislative efforts increasing the number of treatment beds, the state now has 1,581 Medicaid-approved beds, Deputy Secretary Mullins said.

Despite recent gains, she said only 13% of the state’s behavioral health needs are met based on the number of professionals per population. As a result, the primary challenge to addressing the state’s behavioral health care needs is the lack of a professional workforce, Deputy Secretary Mullins said.

Finally, Deputy Secretary Mullins announced that Mr. Hansen has been employed as a special assistant to serve as a liaison for the department, intellectual and developmental disability (IDD) patients, service providers, state hospitals, and advocacy organizations. Mr. Hansen said he plans to address issues related to IDD patients at Sharpe and Bateman Hospitals.

Her remarks centered around the function and structure of the Ombudsman.

Ms. Woodman-Kaehler gave a brief history of the Ombudsman, defined as an independent, impartial public official with authority to receive, investigate, or informally address complaints about government actions. The term “ombudsman” is the Swedish word for “representative of the people” and is a centuries-old role in government, she said.

The Foster Care Ombudsman (FCO) was created in 2019, and Ms. Woodman-Kaehler was its first employee. The FCO was intended to provide a means for foster parents and youth to convey issues and receive assistance, but she added that House Bill 3601, effective in February 2023, helped improve and clarify the existing statute for the office.

To date, the office has received 1,834 complaints.

“It’s a busy office. We substantiate and validate complaints by topic and by county,” Ms. Woodman-Kaehler said.

One of the office’s greatest challenges is to create useable information from the significant amount of data it collects. The data allows us to identify trends and patterns, she said.

Describing the organizational design and response, the FCO currently has a director and deputy director along with eight ombudsmen.

“Our workforce is all over the state,” she said, noting that most complaints are received by phone and e-mail. Responses to complaints are highly customized by the type of complaint, with most being closed within a week or two. The agency’s annual budget is $979,000.

Ms. Woodman-Kaehler said the practice standards of the FCO are independence, impartiality, confidentiality, and credibility, but what the office doesn’t do often causes frustration. She provided some “do not” examples, stating the ombudsman does not discipline, direct, decide, or enforce among other ”do nots.” It does have authority to educate, empower, recommend, negotiate, and advocate, among other responsibilities.

Questions from the Committee centered primarily around the types of complaints and their origin. Ms. Woodman-Kaehler pointed out that calls can come from anyone who is affected by the child welfare system. That can include parents, grandparents, teachers, lawyers, judges, and others.

Delegate Mike Pushkin of Kanawha County asked specifically about a study that recognized West Virginia as the fastest to remove a child from the home. Ms. Woodman-Kaehler responded that the office is looking at that study in detail.

Under the grievance procedure, he said, inmates must exhaust the process before they file a lawsuit. Time frames are set for the process. Inmates receive that information in their handbooks upon arrival. Faster time frames exist for grievances involving sexual abuse or danger of imminent violence, he said.

Commissioner Marshall said the volume of complaints is high, with 18,292 grievances filed from January 2022 to the present. A new Bureau of Intergovernmental Affairs for external complaints from friends, family, or concerned citizens is available.

For informal resolutions of complaints, inmates have access to all staff and the Superintendent.

Commissioner Marshall said inmates can write letters to anyone from the Governor to the news media, can make phone calls, and send secure e-mails. They also have unmonitored access to their attorneys.

Additional resources include a Policy Compliance Officer, inspections by the U.S. Immigration and Customs Enforcement, the U.S. Marshal Service, and an Internal Investigation Unit for violations of policy or for criminal investigations. He also mentioned Facility Citizens Advisory Boards that are restarting after COVID.

Any discussion of Corrections in the past few years has addressed employee vacancy rates and recruitment of staff As Commissioner Marshall noted, the agency is still in a state of emergency. The starting salary for a Corrections Officer is $15.75/hour, and the department has difficulty hiring new staff. A member of the Committee pointed out that Maryland, a competitor neighboring state, just gave its corrections officers a large pay increase.

Delegate Mike Pushkin of Kanawha County asked about legislation that passed a few years ago to expand work release. Commissioner Marshall said the agency is running out of qualified candidates for those positions but is reviewing the classifications. Delegate Pushkin said the law gives the agency a lot of leeway to establish qualifications.

The presentation concluded with both Commissioner Marshall and Mr. Douglas agreeing that staffing problems are caused by more than just money and that the jobs need to be made better and safer.

She acknowledged the company’s bankruptcy, stating it was positive for Frontier. She said Frontier emerged as a new company with a new Board of Directors and management team. Restructuring concluded in May 2021.

“We are very aware that we have reputational challenges in West Virginia,” Ms. Ellis said.

The company’s mission is “Building Gigabit America” with West Virginia being one of only two states where Frontier provides service across the entire state. She outlined Frontier’s goals as operational excellence, financial responsibility, and consumer experience.

“Customer service has been a challenge for us in West Virginia,” Ellis said, noting it is often caused by aging copper line. “Fiber fixes that.”

Expanding on the advantages of fiber, she said Frontier is ranked number one for the fastest Internet upload speeds in the U.S.

“Fiber is unmatched for high-speed connection,” she said, pointing out that it is much more reliable than copper, which has many points of potential failure.

Currently, Frontier has 1,456 employees in West Virginia, and Ms. Ellis said that is a large number for a single state. It has 480 facilities, 160,000 broadband customers, and 157,000 voice customers, a declining number for many years, she said.

Expansion started in 2021 with fiber extended to nearly 29,000 locations in Beckley, Charleston, and Clarksburg. In 2022, 97,083 fiber locations were added around the state. She said the company added nearly 30,000 so far in 2023. Planning is underway for extending service to several communities in 2024.

Describing the grant process, Ms. Ellis said the company had modest success with $20.8 million. It completed work in Boone County and west Mason County, but Comcast received 70% of available funds.

She said Frontier is continuing to work on future grants, including $42 billion nationwide, of which West Virginia will receive more than $1 billion for broadband expansion.

Ms. Ellis said 119,000 Rural Digital Opportunity Fund (RDOF) locations were awarded through the Federal Communications Commission’s (FCC) reverse auction. She pointed out the FCC took a long time to decide awards. The work will begin in 2023 and should be completed by December 31, 2028.

Most of the questions from members of the Committee centered around service to rural areas. Ms. Ellis assured legislators that Frontier will deliver fiber. She said speeds are not distance sensitive. Places that are very rural and hard to reach may require a “niche” solution, she added.

Chairman Daniel Linville wrapped up the questions by asking about Frontier’s total private investment. Ms. Ellis responded that Frontier has invested $100 million in 2023 alone.

“The higher percentage of connections we have, the more we will have. It’ll begin to expand and expand upon itself,” Carmichael said, describing momentum for availability and interest.

During interim legislative meetings Sunday afternoon at Marshall University in Huntington, Secretary Carmichael spoke to the Joint Committee on Government and Finance, which includes lawmakers from both chambers and both parties.

He said American Rescue Plan Act funds have gone toward funding 24 projects in 38 West Virginia counties.

Click here to read more from WVMetroNews.

Smith, during a presentation to the Joint Committee on Education at interim committee meetings at Marshall, said more than 15,000 students in West Virginia have received online degrees in the past three years, but most of those came from schools outside of West Virginia.

“Over the last three years, 15 percent of all of the degrees that have been earned in the state of West Virginia by students in West Virginia have been done completely online; that’s 3,400 degrees,” Smith said.

WVU gave 10% of those degrees. Marshall gave 6%, Smith said.

Marshall saw its enrollment decline begin in 2010, when there were more than 14,000 students. The number is now less than 12,000. WVU has seen a decrease of 5,000 students in the past 10 years. Officials are working on a plan to cut $40 million from the university’s operating budget.

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The program can simulate cyber attacks to train students, National Guard members, and others, he said. It is in the running for the National Security Agency Center of Cyber Excellence Award. The program offers cybersecurity assistance to state and local government.

Mr. Gardner emphasized the program wants to help cities and counties with cybersecurity.

Delegate Jim Butler of Mason County asked whether there is growth in the field.

“Huge,” responded Mr. Gardner.

The Committee heard from three speakers — Scott Swann, CEO of ROC.ai; Ted Kwartler, Field CTO at DataRobot; and Pooja Tolani, Associate Corporate Counsel at Microsoft.

All three discussed areas where state legislatures are likely to make attempts to regulate the fast-developing technology. Those include areas that involve high risk and consequential decisions that affect individuals, such as employment and personal credit.

Ted Kwartler and Pooja Tolani suggested that legislators, when looking to regulate AI in those areas, should be outcome-focused while maintaining interoperability and adaptiveness. It was also recommended that legislators use a multi-stakeholder process when developing regulations.

Ms. Tolani indicated that at least 10 states recently have enacted task forces or commissions to study and survey the risks and benefits of the emerging technology.

“Addiction is a treatable condition, not a moral failure,” Dr. Loyd said. He told the Joint Committee that addiction is a result of genetics, trauma, and opportunity. Although the condition is complex, he said a systemic solution is available.

Dr. Loyd outlined a “recovery ecosystem,” where addicted people are directed from treatment centers and the criminal justice system to a network of resources, including case management, employment support, life-skills development, stable housing, physical and mental health support, and education. Those components create a foundation of employment, transportation, housing. and social support for recovering individuals, he said.

Dr. Loyd described the importance of harm-reduction programs, medically assisted treatment, and prevention rather than reliance on the criminal-justice system. He also asked the Committee to prioritize the voices of people who speak from lived experience.

Senate Education Committee Chair Senator Amy Grady of Mason County told legislators at Monday’s Joint Committee of Education meeting, “Our teachers are so used to professional development being a one-day thing. We have an eight-hour day and schedule the kids are off, and we have professional development that day, and it ends that day,” Senator Grady said.

“For this to be expanded, I think that’s going to be our challenge. Is the mindset of ‘OK, it’s not something I’m learning in one day. It’s something that I am using and continuing to learn over the course of a few years and even still doing it after that as well.’”

The Mason County Senator, who is a teacher, said “it’s everyone responsibility” to ensure the shift in professional development is successful. She called for county boards to hold teachers and administrators accountable for new emphases on professional development as augmented by the state Board/Department of Education monitoring and oversight.

HB3035 requires sustained ‘teacher support’

While legislators’ goals to increase reading proficiency are attainable, Toni Backstrom, strategic state Solutions Manager at Lexia Learning, told lawmakers it may take years for teachers to be fully prepared for implementation of the state’s early childhood literacy requirements.

Ms. Backstrom said teacher support is key, and it requires reliance on proven strategies, such as scheduling “staggered” learning cohorts; providing virtual and in-person professional development; and using mandatory teacher evaluations for needed development that focus on a “support strand” of coaches, specialists and administrators.

In terms of professional development, she said teachers must understand “whys,” especially “why” instruction, both in terms of content and approach.

Additionally, Ms. Backstrom told lawmakers, “Research and science show us that 95% of students can learn. I don’t say that lightly. A number of our students will struggle, they will need additional support and intervention. But if our teachers have the expertise, they can meet every one of those students where they are when they step into the room and get them on that trajectory to success.”

In answer to a question, she said students may struggle with dyslexia or other conditions that affect their ability to learn to read, but persistent and effective screenings can be used to address the needs of those students, especially if the condition is caught early.

The emphasis on learning difficulties was a central House of Delegates consideration that is embedded in the legislation, although Ms. Backstrom didn’t state the degree to which dyslexia and other conditions affect learning.

State Board policies

§ Policy 5901. This policy was discussed at the state Board’s April meeting and during April legislative interim meetings. The policy would align program eligibility criteria for Alternative Certification Programs for the education of teachers to comply with 2023 legislation primarily relating to educator preparation program instructional programs, as well as changes in criteria for educational qualifications. The state Board recommends the policy be withdrawn from public comment and the newly amended version be placed on public comment for 30 days. Click here for more information.

§ Policy 6204. This proposed state Board of Education policy effectuates changes in law relating to school closings or consolidation based on the Legislature’s adoption of Senate Bill 51. That legislation, debated during the past several legislative session, requires enhanced impact statements detailing how school closures or consolidations impact student bus travel times and the “community.” Additionally, the amended policy enhances, clarifies, and makes technical corrections that ensure school closure and consolidation documents support county board school closure or consolidation proposals.

Secondary Schools Activities Commission policies

Subject: 127 CSR 1, Constitution

This rule would require that a second confirmation vote be taken whenever the result of a vote by the West Virginia Secondary Schools Activities Commission (WVSSAC) Board of Control (comprised of state secondary school principals) has a margin of five or less. Additionally, the rule would increase the annual honorarium of each of the officer-members constituting the Board of Directors of the WVSSAC from $500 to $1,000.

Subject: 127 CSR 2, Athletics, Provisions Governing Eligibility

Proposed revisions to this rule expand eligibility for participation in interscholastic athletics to students who comply with §18-2-25, which allows, under certain conditions, homeschooled students, participants of the Hope Scholarship Program, participants in a micro school or learning pod, and private school students to participate in interscholastic athletics at the public secondary school serving the attendance zone in which the student lives.

Additionally, proposed revisions state that in addition to those transfers permitted by any other rule, a student is eligible for a one-time transfer during grades 9-12 and to retain immediate eligibility following the transfer. The rule also provides that if the transfer occurs during a season in which the student has started practice at the previous school, the student will be eligible for all sports except the sport in which the student has started practice at the previous school. Also, any transfer made outside the scope of the rule can file for a waiver with the WVSSAC Board of Directors as permitted by this rule.

Subject: 127 CSR 3, Provisions Governing Contests

Among its many proposed revisions to WVSSAC rules, this proposal would remove language allowing school-organized out-of-season practice or related activities during three consecutive weeks established by each school and approved by each county board or by the governing body of a private/parochial school. Instead, the “flex-days” that each sport program can use from Monday of week 49 through Friday of Week 48 of the next academic year is increased from 12 to 32 days. The revisions also provide that flex days must be combined with all varsity and sub-varsity sports by teams meaning that a flex day used by a sport counts for all levels of that sport per school. Also, participation is required to be open to all students, voluntary, and not required directly or indirectly for membership on a school team. The revisions also would allow a coach to promote, initiate, organize, supervise, or participate in out-of-season events involving students of the same sport as the grade-level coaching assignment and preceding grade level once a student has aged out of the coach’s assignment, meaning a middle-school coach can coach an eighth-grade student in the same sport after the conclusion of the season and that a high school coach can coach an athlete once the student has completed the senior season.

27 CSR 4, Provisions Governing Conduct

Revisions to this rule change the method for determining how many additional contests a coach, student, or bench person ejected by an official is required to be suspended. Currently, the suspension is assessed based on 10 percent of the allowed regular season contests or post-season progression in a playoff tournament for that sport. The rule, however, stipulates the suspension is always based on 10 percent of the regular season contests regardless of when the suspension occurs and providing the exact length of the suspension, based on the sport. Finally, the rule would allow an appeal of any subsequent suspension that is a consequence of an ejection by an official but retains the prohibition against an appeal of the rejection. The state Board of Education will consider placing the rules on a 30-day comment period at the Board’s May 10 meeting.

Ms. Hamilton was appointed to represent the 81st District, which covers part of Morgantown. She will complete the unexpired term of former Delegate Danielle Walker.

“I’m thankful for what God has allowed me to do,” Delegate Hamilton said immediately after House Clerk Steve Harrison administered the oath. “I want to make a difference while I’m here. I want to learn and grow and make a change in the state of West Virginia.”

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During a Monday appearance on MetroNews “Talkline,” Wood said he felt the timing was right with the current Secretary of State Mac Warner’s announcement about his run for governor. Wood said he has developed the skills to be Secretary of State.

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