From the Well | October 18, 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

October Interim Meetings

October 18, 2023

West Virginia News Headlines

in one place?

·     GOVERNMENT OVERSIGHT: The West Virginia Legislature’s Joint Committee on Government Organization heard reports from the West Virginia Legislative Auditor’s Office for the Board of Occupational Therapy and the Board of Chiropractic, an update on previous reports, and information from the Department of Veterans Assistance.

·     ENERGY: The West Virginia Legislature’s Joint Standing Committee on Energy and Manufacturing heard from industry representatives on Monday about generally favorable energy market trends.

·     DHHR: The Legislative Oversight Commission on Health and Human Resources Accountability heard a variety of updates Tuesday on death records, vital statistics, and the reorganization of the Department of Health and Human Resources.

·     EDUCATION: A state Department of Education official provided a comprehensive report on Monday about student discipline to the Joint Standing Committee on Education.

·     PEIA: The Legislature’s Joint Standing Committee on Insurance and PEIA heard a presentation about using comparative-effectiveness research to improve the state Public Employee Insurance Agency’s pharmacy benefits plan and lower costs.

·     ELECTION SECURITY: Deputies from Secretary of State’s Office discussed West Virginia’s voting process with the House Committee on Veterans Affairs & Homeland Security.

·     FIRE, EMERGENCY SERVICES: The Legislature’s Joint Committee on Volunteer Fire Departments and Emergency Medical Services heard presentations on minimum ratios of emergency service vehicles and personnel needed to adequately provide emergency services and on current funding mechanisms available to counties to provide funding for emergency services.

·     MENTAL HYGIENE: The Legislature’s Joint Standing Committee on Health heard presentations Tuesday from experts discussing the mental-hygiene process.

·     TOURISM: The West Virginia Legislature’s Joint Standing Committee on Economic Development and Tourism heard an update from the Mountaineer Trail Network Authority.

·     CORRECTIONS: West Virginia’s jails system remains in a state of emergency, still leaning on National Guard members for support.

Chairman Trump said the Legislature has tried to address some of the problems with respect to Child Protective Services (CPS), but he thought it would be a good idea to have further conversations on the subject.

“I’m cognizant of the fact that unless you’re a litigant or a participant in these cases, or unless you’re a lawyer in these cases, it’s hard to get information. The cases are sealed. The proceedings are closed proceedings,” Chairman Trump said.

Steven Redding, Chief Judge in the 23rd Judicial Circuit (Eastern Panhandle), told the Committee he was speaking as a sole jurist to provide his candid perspective of the ongoing crisis in CPS. Providing some history, he said this is not a new crisis in the Eastern Panhandle, noting that a court order in 2004 from retired Judge David Sanders described DHHR as “dangerously understaffed.”

Judge Redding emphasized that the most glaring problem is the absence of in-state facilities for the most difficult cases, explaining that some children are so out of control and dangerous that no in-state providers can accept them.

“We end up in a twilight zone,” said Judge Redding, citing no appropriate facilities, lengthy processes, and the danger in sending juveniles to a children’s home. He further emphasized that an in-state facility must be established.

“If it’s too dangerous to put a child in a hotel room with two CPS workers, then how can it be safe to keep these children at home with community services?” asked Judge Redding.

Judge Redding acknowledged that pay increases have helped with CPS staffing in the Eastern Panhandle, where employees can easily go to Maryland or Virginia for higher salaries. Other issues that continue to be a problem include the backlog of 400 cases as of September, delayed payment of invoices for treatment providers, and infrequent court reports.

“I have no idea what’s happening in these cases,” Judge Redding said in reference to the rare court reports he receives.

Judge Redding said only two judges in the Eastern Panhandle preside over abuse and neglect cases, and that results in dockets booked out for months and unnecessary delays for children.

Judge Redding said CPS workers are handling four times the number of cases that studies say are feasible, but he added he was not disparaging the front-line workers. Referring to the several issues he raised, he asked the Committee, “Is it manpower related or more systemic?”

“We have experienced significant issues with our workforce recruitment and retention,” said Bureau for Social Services Commissioner Jeffrey Pack, continuing the discussion on child welfare.

Commissioner Pack said the vacancy rate currently is 33% across the state, but he added the retention incentive creating a special hiring rate for CPS workers will help. He also pointed out that Senate Bill 273 passed during the 2023 session will allocate CPS workers around the state according to population, and the Division of Personnel no longer will be over the Bureau for Social Services personnel after Jan. 1.

In response to a question from Chairman Trump, Commissioner Pack said he completely agrees with Judge Redding that an in-state facility is needed. He said his agency is meeting with providers.

“My singular goal upon which I have been solely focused is that I want my successor to inherit a better situation than I did. That drives my sense of urgency,” Commissioner Pack concluded.

Chairman Trump asked presenters what they would like for the Legislature to do during the upcoming session. Judge Redding responded that court-appointed attorneys aren’t paid enough for work that sometimes takes 60 to 80 hours a week. He recommended getting the hourly rate up to the federal government rate, particularly in the Eastern Panhandle.

Commissioner Pack responded that he would like to see additional allocations for a number of counties throughout the state.

Committee members asked a variety of questions, ranging from grandparents’ challenges to delayed payments, but the final question was how to stop the crisis for children from happening.

Commissioner Pack answered immediately, “Invest in prevention. Keep CPS from being involved by strengthening and supporting families before it becomes a crisis.”

Click here to read more from The Weirton Daily Times.

Alex Penny, Performance Evaluation and Research Department (PERD) Research Analyst, provided the results of the audit for the Board of Occupational Therapy, which concluded that the Board needs to continue its work because of the significant potential of harm should that service be unregulated. The audit found that the Board is exceeding its authority by offering free continuing education to licensees every year, noting that it makes up 17% of its expenditures; only 13% of its members are using the service. PERD recommended the Board refrain from offering the service.

ADA compliance was an issue for the office of the Board of Occupational Therapy, as well as other Boards, including the Board of Physical Therapy and the Board of Examiners and Counseling. The Legislative Auditor’s recommendation is that the Legislature change the statute to require ADA compliance for state offices. It also recommended that properties be inspected and approved for compliance before lease or purchase.

The PERD findings for the Board of Chiropractic were reported by Austin Barnett, PERD Research Analyst. PERD recommended the Board be continued, noting that it is financially self-sufficient but needs to improve its website. It said the Board resolves complaints well within the 18-month threshold.

Concerns were expressed about a revenue shortfall and inaccuracies in the number of licensees on the Board of Chiropractic’s report. Fee payments could not be found for 9.3% of the licensees. ADA non-compliance also was noted as being restrictive to the public and potential employees.

PERD Director cites problems with Office of the Medical Examiner

John Sylvia, Director of PERD, provided an update on some of the 12 reports completed in 2021.

He said unusual circumstances were discovered in the Office of the Chief Medical Examiner, including a large number of remains. The Office told PERD it did not have the authority to dispose of remains. The Legislature agreed and provided authority in House Bill 4559. However, there has always been authority to cremate identified remains. The law and rules have a discrepancy regarding authority to cremate unclaimed remains.

Director Sylvia reported that Senate Bill 273 incorporated recommendations to use child population to allocate Child Protective Services staff and to improve recruitment and retention with pay incentives.

The Department of Administration was found to be purchasing property without regard to maintenance costs incurred by the General Services Division. A statutory legislative moratorium was recommended, but the Governor placed a moratorium by administrative order. Director Sylvia pointed out that the state still owns a lot of buildings where the money coming in doesn’t pay to maintain them.

The Purchasing Division promulgated rules that the Legislative Auditor found too restrictive, especially for smaller accounting firms. It is recommended that the issue be revisited, but the Purchasing Division has not agreed that the rules need to be changed.

Department of Veterans Assistance provides report

The meeting concluded with a brief report from Ted Diaz, Cabinet Secretary for the Department of Veterans Assistance, who said the value of federal services to veterans and their families totals $4.25 billion a year that is redistributed into the West Virginia economy. The total includes $1.7 billion in retirement income, he said.

Chris Hamilton, President of the West Virginia Coal Association, expressed gratitude to the Legislature for supporting the coal industry over the years. He acknowledged the industry has faced many problems stemming from federal policies.

Hamilton provided some context regarding investments that coal companies have made in West Virginia despite the difficult environment. He said production is up slightly this year, and he gave details about thermal and metallurgical coal markets.

Hamilton expressed frustration that the major investments do not receive more recognition from state economic development agencies.

Eric Vir, CFO of Pillar Energy, discussed the current natural gas market and future trends. West Virginia is a major producer of natural gas, ranking fourth nationally in production.

Charlie Burd, Executive Director of the Gas and Oil Association of West Virginia, told committee members the combined cubic feet of gas extracted from West Virginia, Pennsylvania, and Ohio makes the tri-state area the third largest producer in the world behind only the United States and Russia. Production has increased dramatically from 256 billion cubic feet in 2008 to more than 2.8 trillion cubic feet currently, an 11-fold increase.

West Virginia producers pay significant taxes on natural gas production, including more than $700 million in severance taxes and $185 million in property taxes in fiscal year 2023.

He said infrastructure like the Mountain Valley Pipeline is important to provide access to new markets and improve gas prices because much of the production currently needs to be exported because of a lack of local demand.

The West Virginia Department of Environmental Protection’s permitting and well-plugging programs were discussed. Permitting is down this year, while plugging permits are up, reflecting increased funding toward plugging abandoned wells.

Death records, vital statistics addressed

Matthew Wickert, State Registrar for the Vital Records Branch of DHHR, discussed the implementation of the Electronic Vital Registration System, which is known as “DAVE.” It had a successful rollout in its first year, with 76% of all death records registered electronically. It has reached 100% in 2023, with 80% being reported within 10 days of death.

Prior to 2022, West Virginia was a fully paper death certificate state, and families waited up to 40 days for a death certificate. They now have a death certificate to begin to settle affairs within 11 days from the date of death, beating the national average.

Incorrect Social Security numbers have been problematic on paper death certificates. The system now checks the numbers, and it is a big improvement, Mr. Wickert said. It is also more accurate on stating time of death.

“We will never stop improving it,” said Mr. Wickert about DAVE. The agency also will enter old paper death certificates.

Now that the “death system” is implemented, the agency is working on a similar model for births.

Funeral directors cite problems with Medical Examiner

Robert Kimes, Executive Director of the West Virginia Funeral Directors and Crematory Operators Association, discussed the two main concerns with the Office of the Chief Medical Examiner (OCME).

The main problem is the condition of remains of bodies as they come from the OCME.

“We need blood vessels to be accessible for the embalming situation,” Mr. Kimes said.

The second problem is the delay on death certificates. Mr. Kimes noted arrival of a death certificate can take up to eight months from the OCME, and insurance companies will not accept them if the certificates say the cause of death is “pending.”

Reorganization of DHHR updated

Dr. Cynthia Persily, incoming Secretary for DHHR, presented and expanded upon the Seven Core Action Areas for Child Welfare Transformation:

·     Prevention

·     Workforce

·     Practice

·     Kinship Care

·     Foster Care

·     Adoption

·     Justice System

She said prevention is the first step in curtailing the child welfare crisis, and the agency needs to prevent further impact on the children if they become involved with the system.

“We are really focusing our efforts on prevention,” Dr. Persily said.

Another priority is helping children with serious emotional disorders access services. Dr. Persily said a family often must go into great personal debt or give a child to the state to get Medicaid coverage for the children. The agency is working to prevent that outcome.

In West Virginia, 6,186 children are in state custody. Of those, 58% in state are in kinship care. Dr. Persily said those children have improved in their academic outcomes and general well-being.

“Prevention efforts take a while to show up,” Dr. Persily said. She credited the positive outcomes to the dedicated workforce, noting that the Child Protective Services vacancy rate is down to 81 positions statewide.

In discussing the next steps, Dr. Persily said she’d like to have a child welfare transformation summit in December, coinciding with the interim session, to bring in national partners and have an afternoon “think tank.”

Contract staffing described as ‘big spend’

Michael Caruso, incoming Secretary for the Department of Health Facilities, told the Committee that 55 beds in Welch will transition to West Virginia University, and there will be 511 long-term care facility beds in the state.

Updating other issues, Mr. Caruso said the $152 million approved for facilities is still in the assessment phase, and full-blown Electronic Health Records will be about a two-year process for implementation.

He concluded with the big issue, contract staffing costs. He described it as a “big spend.” All contracts are now rebid, and the expenses will drop. Another key item is a statewide assessment of the beds needed.

Dr. Sherri Young, Interim Secretary of DHHR and incoming Secretary for the Department of Health, wrapped up the meeting. Chairman Mike Maroney asked her to review some of the requests legislators made at the previous meeting but also noted the Committee was limited on time for her report.

Her update included the request of a building for the Office of Chief Medical Examiner.

“We need the space to get autopsies done,” Dr. Young said.

In other updates, the Office of Human Resource Management has helped reduce vacancy rates.

The Human Rights Commission’s current office building is changing use, and the Commission is looking for a facility.

Delegate Amy Summers of Taylor County asked about the purchasing process report that states it takes 119 days to buy items and 11 different approvals. Dr. Young said the agency is working to get that down to 69 days and within the current purchasing rules.

Delegate Summers also requested that Dr. Young report back at the next meeting on the amount DHHR is spending on attorneys and legal fees.

Before the meeting adjourned, Delegate Summers asked each member to review draft legislation that would allow LOCHHRA to go into executive session for certain issues pending with DHHR, some of which could involve constituents.

Drew McClanahan, WVDE Director of Leadership Development, followed the data presentation and said the Department is creating a “discipline dashboard” for parents and communities.

The dashboard concept drew scrutiny from Delegate Dana Ferrell of Kanawha County, who compared the concept to the ill-fated state Board of Education idea of assigning of public schools letter grades based on data such as student assessments. Governor Jim Justice effectively killed the concept during his 2017 inauguration address, claiming school letter grades could harm state economic development efforts.

“You don’t have a concern for that? I struggle with this…. A community can really get in trouble with this and can’t dig themselves out” if school-discipline data is posted, potentially labeling some schools, Delegate Ferrell said, referring to letter grading schools.

Mr. McClanahan said the dashboard continues WVDE transparency efforts to ensure that communities have access to broad data about public schools, noting the Zoom dashboard includes test scores and an array of school district and school data.

Legislators say discipline statistics are sobering with 177,000 days of lost instruction because of suspensions.

Legislators also learned that few counties have alternative learning centers where suspended students can receive instruction because of personnel costs and facility considerations.

The WVDE report data show variances, including Black and African-American students having higher suspension rates among students and that variances based on socio-economic considerations stand out.

Legislators also learned that more foster-care students are subject to disciplinary actions leading to suspensions or expulsions. Delegate Heather Tully of Nicholas County urged the WVDE to gain greater understanding of the issue.

Mr. McClanahan said better school personnel training, greater understanding of school culture, and awareness of issues that students face at home are effective strategies that could diminish suspensions or expulsions, although he and Ms. Hughes-Webb said counties have considerable leeway in terms of suspensions.

WVDE public education data is available here.

Charter school leader provides update

James Paul, Ph.D., Executive Director of the West Virginia Professional Charter School Board, provided a comprehensive report regarding opportunities and challenges facing the state’s public charter schools.

His report noted that virtual charter schools are having greater growth than brick-and-mortar charters.

Director Paul said the chief distinction between public schools and charter schools lies in the “charter” – what the charter school is commissioned to accomplish, based on innovation and lesser regulation, although he emphasized charters assess student achievement using West Virginia Department of Education rubrics.

He also said the charter board received a $12.3 million federal grant to augment charter startups and called for legislators to consider reimbursing charters for costs to lease facilities and asked for a listing of vacant public schools.

Director Paul acknowledged legislators for granting charters access to state school aid formula funds, including money for growing student enrollments.

He urged the Legislature to fund 2023 stimulus legislation and agreed that use of county excess levy funds for charters is problematic. House Education Vice Chair Joe Statler, R-Monongalia, however, said charter officials should consider seeking inclusion in county board excess levy calls.

Click here to read a report from WVMetroNews.

Administration costs compared

John Treu, Ph.D., founder and Board Chairman of the Morgantown-based West Virginia Academy, delivered a presentation that included a comparison of public schools and charters in terms of administration. Mr. Treu said his data show charters focus on funding classrooms with lesser administrative encumbrances.

Senator Robert H. Plymale of Wayne County questioned whether Dr. Treu’s analysis should include principals who serve as chief instructional leaders. Treu concurred, but he emphasized in his analysis that public education dollars largely “fund salaries of administrators as opposed to classrooms.”

He countered Academy attrition criticisms, admitting some initial enrollees didn’t like the charter environment, which he described as more challenging than public schools in terms of expectations, especially regarding conduct. He noted that some public school students entering the Academy describe frequent fighting and vaping.

In a required report about charter schools, state Superintendent Michele Blatt provided no suggestions about charter practices that might be replicated in public schools, a report component that Committee members didn’t mention.

Research seed funds discussed 

In other October legislative meetings, LOCEA and the Joint Standing Committee on Education learned that higher education research “seed moneys” efforts provide significant matching funds for research.

Among other public education presentations, Committee members learned about interval assessments of students to gauge academic progress. They also heard a report about student opioid abuse strategies.

Ms. Gorla began by outlining some of the challenges PEIA currently faces with rising pharmacy costs and squeezed independent pharmacies. She proposed taking a different approach than just focusing on price and rebates. She suggested examining which drugs provide the best clinical value. Ms. Gorla showed that a small percentage of higher-cost brand name drug claims account for the majority of PEIA’s pharmacy spending, suggesting opportunities to shift utilization.

She presented examples from other organizations that saved millions of dollars by promoting more effective generics identified through comparative-effectiveness research. One client reduced costs from $85 to $52 per member per month while passing more savings directly to members. Ms. Gorla estimated PEIA could save at least $70 million based on a preliminary analysis, especially within diabetes drug spending.

The Committee discussed PEIA’s current arrangement and interest in implementing Gorla’s approach systemwide rather than just through a pilot program. However, details about potential cost savings for PEIA were proprietary. In closing, Ms. Gorla said she believed her comparative-effectiveness model could generate significant savings for West Virginia while improving care if fully adopted by PEIA.

Chuck Flannery and Donald Kersey addressed election security and voting processes in West Virginia. The two also provided an overview of the state’s voter registration system, voting equipment, post-election audits, and funding measures to upgrade equipment and bolster cybersecurity.

Both explained to Committee members how the state maintains accurate voter rolls through various processes, including sending confirmation notices to voters who may have moved or not voted recently.

Voting is done on electronic touchscreen machines that produce a verifiable paper trail. Post-election audits involve hand-counting of a random sample of ballots to ensure accuracy. The state has replaced all voting machines with funds from various state and federal sources, they said.

Cybersecurity measures were also outlined. The state’s voter registration database is being housed securely rather than in the cloud, they said.

The Committee discussed concerns about Internet connectivity, as well as certification testing done on machines. Mr. Kersey emphasized that nothing directly related to voting is connected to networks or the Internet.

Jody Ratliff, Director of Office of Emergency Medical Services, explained how a system status management model can be used to determine the minimum number of ambulances needed in each county based on population data. It was noted that many counties do not meet the minimum.

He also reviewed the history of relevant state statutes and court cases. While the statutes give counties tools to provide EMS services, the state has no mandate that they do so.

Joe Altizer, Counsel for the House Minority, discussed funding from the recent legislative session. It was explained that $6 million went into the fire protection fund, with each eligible department receiving about $28,000 so far. However, he said that should not be expected to be an ongoing amount.

Two additional funds of $3 million each were outlined — one for all counties based on population and one for counties with an EMS or fire fee. Neither has been distributed yet because information is missing from some counties. Committee members agreed to follow up with counties that had not yet responded with necessary data to access allocated funding.

Keith Hoover, representing the West Virginia Supreme Court of Appeals, presented information about proposed reforms to modernize and regionalize the state’s mental hygiene process.

House Bill 3346, introduced during the 2023 legislative session, proposed creating a regionalized mental hygiene system. The bill did not pass.

Currently, there are 65 part-time mental hygiene commissioners across the state. Hoover discussed replacing that system with seven full-time regional commissioners who would handle all involuntary commitment and guardianship cases within their region virtually by video. That would increase costs $1.5 million to $1.6 million but would provide greater flexibility, expertise, and consistency.

Committee members asked clarifying questions about whether the commissioners would still need to be lawyers and how rural Internet access could affect virtual hearings.

Stephanne Thornton presented as a volunteer on behalf of The West Virginia Social Work Education Consortium. She discussed the importance of expertly trained social workers intervening in cases of vulnerable children. In her opinion, social workers are more able to identify barriers and connect children and families to services more so than probation officers.

Eli Baumwell, Interim Director of the ACLU in West Virginia, discussed minors’ access to their own medical records under state and federal law. He outlined different legal exemptions and frameworks around parental consent, emergency care, mature minors, and when minors can waive privacy rights.

Dr. Matthew Christiansen, Commissioner of the Bureau for Public Health, using various metrics and rankings, discussed the poor state of public health in West Virginia. He emphasized that health is determined by multiple social and environmental factors beyond just health care. Dr. Christiansen proposes a new state health assessment and improvement planning process to identify consensus health priorities through community input and data. He said that would guide policy solutions.

Committee members asked about extending the community survey deadline to get more input, supporting legislation around physical education to improve childhood health, and how the goals of the new plan will have measurable outcomes to track progress.

Mountaineer Trail Network Authority Executive Director Andrew Walker spoke to the committee during the first day of the October Interim Session.

“We are the recreation authority in the state of West Virginia,” Director Walker said. “(We’re) an economic development authority that was created by the state Legislature in 2019. We’re currently operating under an ARC (Appalachian Regional Commission) power grant — that’s a three-year grant, and we’re in the final year of it right now.”

Director Walker added: “We are launching five specific outdoor travel destinations for 2024. Those are currently Big Bear Lake Trail Center, which is in Preston County; the Cheat River Water Trail, which is in Preston and Tucker counties; Snowshoe’s Back Country Trail in Pocahontas (County); Mountwood Park, which is in Wood County; and then the Camp 70 Trail System, which is located in Tucker County.”

Director Walker said the “three pillars of purpose” are seeking to “develop collaborative relationships,” finding the “most diverse outdoor recreation opportunities,” and to better the communities which they serve.

Click here to read more from the West Virginia Press Association.

“I am happy to report today, for the first time since Covid, our vacancies were under a thousand. We were almost at 1,100 at one time. We’re now at 990,” said Corrections Commissioner William Marshall at legislative interim meetings.

He said 330 to 340 National Guard members continue to staff West Virginia corrections facilities.

Governor Jim Justice declared a State of Emergency more than a year ago over the staffing in West Virginia’s jails system, enabling the National Guard to perform support roles. Since then, state officials have been discussing how best to alleviate the staffing shortages.

Commissioner Marshall said recent pay incentives seem to be working, although he said the sample size is too small to judge. He said the state is trying other ways, such as job fairs, to make corrections jobs attractive.

Click here to read more from WVMetroNews.

·     November 12-14 (Wheeling)

·     December 10-12

·     January 7-9