From the Well | January 25, 2024

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

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

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

86th West Virginia Legislature

State Capitol

January 25, 2024

VEHICLE LICENSE PLATES: House Bill 4309, passed by the Fire and EMS Committee, will allow one personal vehicle owned by a volunteer firefighter to be eligible for license plate and registration at no cost. The volunteer firefighter is eligible after five years of service, and he or she must present an affidavit from the fire chief confirming service.

PARENTS’ BILL OF RIGHTS: The House Committee on Senior, Children, and Family Issues passed House Bill 4313, which aims to create a Parents’ Bill of Rights in West Virginia.

DOULA SERVICES: The Senate Health and Human Resources Committee passed Committee Substitute for Senate Bill 313, which would require doula services to be covered by Medicaid and PEIA. It is second referenced to Finance.

CHILD DEATHS: Committee Substitute for Senate Bill 474, passed by Senate Health and Human Resources Committee, creates a new article in code to establish the Critical Incident Review Team to review deaths or near deaths of a child in the custody of the Department of Human Services.

RECOVERY RESIDENCES: The Senate Health and Human Resources Committee passed Committee Substitute for House Bill 475, which relates to recovery residences.

BILL PASSAGE: The House Committee on Health and Human Resources passed three legislative rulemaking bills Thursday afternoon and moved all three bills to the House Floor.

PUBLIC INFORMATION: The Senate Judiciary adopted Senate Bill 477, which prohibits the public disclosure of personal information regarding health care workers via the Internet.

DOMESTIC VIOLENCE: The Senate Judiciary Committee adopted House Bill 4252, which legislation establishes a framework that allows Canadian domestic violence orders to be recognized, registered, and enforced by West Virginia law enforcement and courts.

WINERIES: The Senate Judiciary adopted Senate Bill 320, which removes statutory requirements that wineries must serve food in order to serve and sell wine by the glass or bottle.

TAXATION: Senate Joint Resolution 5, if approved by voters, would amend the state Constitution to provide for a Homestead Exemption for veterans with 90% or greater service-connected disabilities.

LOBBYING: The Senate Government Organization Committee adopted legislation Thursday relating to the state Ethics Commission’s role in regulating lobbyists and lobbying.

To reduce the business license fee for WV Volunteer Fire Departments to $250

The bill also provides that no county or political subdivision is empowered to impose an additional fee. The bill is second referenced to the House Finance Committee.

Provide volunteer firemen free license plates and vehicle registration

A commercial vehicle owned by a firefighter is not eligible. Counsel was asked about a situation where both the husband and wife each had a car registered in both their names. Counsel responded that if only one is a firefighter, only one car is eligible. If both are firefighters, each can claim eligibility of a car.

The fiscal note stated approximately $9,000 in one-time programming costs and a reduction in revenue of $300,000 based on 6,000 eligible firefighters. The bill is second referenced to House Finance.

Creating the Parent’s Bill of Rights

Committee Counsel said the bill would define parental rights and allow parents the right to direct their child’s education, health care, and upbringing. It also included provisions for parents to sue the state or other entities for violations and seek attorney fees. The bill contains a committee amendment that creates new code sections 4911-1 through 4911-5 and does the following:

·     defined who constitutes a “parent”;

·     clarified parental rights to direct the upbringing, moral/religious training of their child, and make health care decisions;

·     allowed parents to access and review school records;

·     removed language making the bill retroactively apply to past laws/rules.

Jordan Carpenter, Legal Counsel with the Alliance Defending Freedom, discussed how similar bills in other states aim to balance parental and state interests. He said it provides legal recourse when parental rights are violated without consent. Mr. Carpenter cited medical exams on children.

Several Committee members remained concerned the broad language could enable frivolous litigation. They worried it might allow lawsuits against volunteers or interfere with child-abuse definitions. Carpenter challenged that courts are equipped to handle unfounded claims and dismiss them.

Ultimately, while supporting parental rights, several Committee members said they could not back the bill because of its litigation provisions and vague language. The Committee still voted to send it to the Judiciary Committee with a recommendation it passes as amended.

Requiring doula services be covered and reimbursed 

by Medicaid and PEIA

Senator Laura Chapman of Ohio County noted the bill as passed from Committee last year had a definition of a doula. She successfully amended the bill to add that a “doula” means a trained professional providing continuous physical, emotional, and informational support during pregnancy, throughout the antepartum, intrapartum, and postpartum periods.

Doula services may be provided from the date of confirmed conception through 180 days after delivery, contingent on the client maintaining Medicaid eligibility.

Creating critical incident review team

The Committee Substitute puts the review team under the Department of Human Services rather than the Office of Inspector General as in the introduced bill. Members of the review team and their responsibilities are set forth and include analyzing all deaths and near deaths, ascertaining trends, and providing statistical information.

Relating to recovery residences

The bill requires the collection of data from recovery residences and authorizes that the Office of Inspector General to review the data to look for trends of patient brokering or human trafficking.

Parkersburg Mayor Thomas Joyce spoke in support of the bill. He said Parkersburg has 12 recovery residences “that we know about.” Of those 12, only five are certified and seven are not certified.

He said that the city of Parkersburg assists the certified residences, and the bill would heighten accountability and performance. He cautioned the Committee that more is needed, but that this was a good start.

The mayor added that 30 parolees a month on average are paroled into noncertified facilities, saying, “That is concerning.” The centralized registration will help city officials know who is in charge and who is responsible at the facilities.

“We want these folks to get better. Facilities need to be held to a higher standard,” Mayor Joyce concluded.

Authorizing the West Virginia Board of Medicine to promulgate a legislative rule relating to licensure, practice requirements, disciplinary and complaint procedures, continuing education, physician assistants

The bill updates the continuing education requirements to focus on best practices for assessing risk and properly prescribing controlled substances, rather than drug diversion.

Authorizing the West Virginia Board of Medicine to promulgate a legislative rule relating to continuing education for physicians and podiatric physicians

The rule would need to be updated to comply with a previous bill, House Bill 3317, which was passed in 2023. It removed continuing education requirements concerning drug diversion and veterans’ mental health.

The bill would allow the Board of Medicine to propose a new rule that modernizes definitions and requirements. Specifically, it would define “drug or drug diversion” as risk assessment and responsible prescribing of controlled substances. It still would mandate education on the topic both initially and every two years for those who prescribe controlled substances with an exception for those who do not prescribe them.

Authorizing the West Virginia Board of Medicine to promulgate a legislative rule relating to permitting and disciplinary procedures: educational permits for graduate medical interns, residents, and fellows

Prohibiting the public disclosure of personal information regarding health care workers on Internet 

It is based on a form of “cyberbullying” known as doxing, which Committee Counsel said, includes use of sensitive or secret information, statements, or records for the “harassment, exposure, financial harm, or other exploitation of targeted individuals.”

The amended bill definition includes “first responders.”

The bill has the following definitions:

·     “Health care worker” was amended by the Committee to refer to “first responders.” (The introduced legislation referred to “health care worker” to include “an employee, contracted health care provider, or individual serving in a governance capacity of a hospital.”

·     “Hospital” means a facility licensed and any acute care facility operated by state government that primarily provides “inpatient diagnostic treatment or rehabilitative services to injured, disabled, or sick persons under the supervision of physicians.”

·     “Personal information” means the home address, home telephone number, personal mobile telephone number, pager number, personal e-mail address, or a personal photograph or video of a health care worker as well as directions to the home of a health care worker, or photographs or videos of the home or vehicle of a health care worker.

·     “Immediate family” means a health care worker’s spouse, child, parent, or any other blood relative who lives in the same residence as the health care worker.

A misdemeanor offense is provided for individuals convicted of “knowingly making” personal information of a health care worker, or their immediate family, “publicly available on the Internet” if the information is made public with the “intent to threaten, intimidate, or incite the commission of a crime of violence against that person” or with the “intent and knowledge that the personal information will be used to threaten, intimidate, or facilitate” commission of a “crime of violence against that person.”

If convicted, the individual could be fined up to $500 and face a year’s imprisonment or both.

The Committee also increased subsequent penalties to $1,000 with additional jail sentences or both.

Additionally, SB477 allows health care workers to submit written requests to a state or local government official to remove personal information from records that are available on the Internet. If a state or local government receives the written request, then the state or local government official shall not knowingly make available on the Internet personal information about the health care worker or the health care worker’s immediate family.

The health care worker’s written request to remove records must include evidence the health care worker meets the statutory definition for that position and include “affirmation” and that the person, in submitting the request, has “reason to believe that the dissemination of the personal information contained in the records that the official makes available on the Internet poses an imminent and serious threat to the person’s safety or the safety of the person’s immediate family.”

According to Counsel, the addresses can be readily gotten from courthouse records, such as deeds or online records.

Senator Jay Taylor of Taylor County asked whether the measure would increase costs in terms of time and effort of county officials. Committee Counsel said costs would be negligible, reiterating no fiscal note is requested.

Senate Judiciary rejected an amendment by Senator Taylor so bill provisions would apply to all “workers” in West Virginia.

Based on Committee testimony by representatives of both the West Virginia Hospital Association (WVHA) and Marshall University Health Network, instances of doxing often arose to prominence during the COVID-19 pandemic, although Counsel noted that earlier laws dealt with patients with various medical health conditions, including patients being treated for mental health conditions.

Senator Mike Stuart of Kanawha County asked the WVHA and MU Health Network officials why the bill as introduced didn’t include law enforcement personnel. Both representatives noted the legislation was introduced for clients they represent, and both said amending the bill to include law enforcement personnel is a policy issue.

Senator Stuart agreed to have his motion amended to include the suggestion of Vice Chair Ryan Weld of Brooke County to include the “first responder” term in the bill to encompass health care workers.

Chair Charles Trump of Morgan County said he is amenable to consider a bill encompassing “all workers” based on the concept that Senator Taylor provided.

Following extensive Committee discussion and debate, Vice Chair Weld a motion the legislation as amended be reported to the Senate floor with the recommendation that it be adopted.

Uniform Recognition and Enforcement of Canadian Domestic Violence Protective Orders Act

According to Committee Counsel, legislation proposed in 2015 recommends states adopt a uniform approach regarding Canadian domestic violence orders. Nine states have enacted statutes similar to that proposed by HB4252. None of the states is contiguous to West Virginia, according to Counsel, who said the Indiana Legislature is considering the measure this year.

As stated in House of Delegates testimony and reiterated by Committee Counsel, West Virginia law must be amended or Canadian Domestic Protection Orders (DPOs) cannot be enforced in the state. Counsel explained that Canadian Provinces, with the exception of the Province of Quebec, honor domestic protection laws of the 50 states or U.S. territories to the degree enforceable under applicable Canadian laws. According to Counsel’s research, the Province of Quebec recognizes domestic protection laws of 10 U.S. states.

When asked about the necessity of the legislation, Counsel noted instances where the Canadian DPO could not be enforced, especially in areas in and around U.S. Route 119 and the West Virginia Turnpike.

Removing requirement for wineries to serve food when serving wine

removes statutory requirements that wineries must serve food in order to serve and sell wine by the glass or bottle.

SB320 also allows the service of wine in glasses and sale of wine in bottles and glasses for consumption on winery properties both indoors and outdoors as well as at fairs and festivals.

According to Committee Counsel, a winery, to participate in fairs and festivals, would be required to have a wine permit, a private winery permit, and a multi-capacity permit. Each permit varies in scope, with the multi-capacity license having the greatest cost.

Senator Jason Barrett of Berkeley County was successful in amending SB320 to allow, under provisions of another state law, out-of-state wineries to sell wine at fairs and festivals on a temporary basis. There are limits on the number of venues in which out-of-state wineries could participate, according to a representative of the state Alcohol Beverage Control Administration.

Senator Barrett said his amendment “leveled the playing field” to attract both in-state and out-of-state wineries to participate in municipal or regional wine festivals.

Under current law, sales of wine are subject to verification that the purchasing person is 21 years of age or older and not visibly or noticeably intoxicated.

The bill was reported to the Senate floor.

Homestead Exemption for Disabled Veterans Amendment

Relating generally to lobbying rules

As explained by Committee Counsel, the genesis of SB482 — and House Bill 4759, companion legislation — arose when the Legislature’s Joint Rulemaking Review Committee, in reviewing a Commission rule relating to grassroots lobbying, determined the Commission lacked express ability to adopt rules regulating lobbyists and lobbying.

SB482, as explained by Counsel, provides the Commission permissive authority to develop rules — a trend Counsel said is occurring with rulemaking in that the statutory requirement that agencies develop rules often results in recitation of enacting statutes. By use of permissive rulemaking, Counsel said agencies would have the ability to develop rules as directed by statute or use discretionary rulemaking authority to amplify statutory language.

Senator Mike Stuart of Kanawha County asked Committee Counsel whether the measure weakens or strengthens lobbyists and lobbying.

Counsel reiterated the Commission lacks express authority to regulate lobbyists, although lobbyists are covered under the Ethics Act.

Senator Stuart also inquired whether the statutory language relating to grassroots lobbying and listing of all expenses of $5,000 or more (rather than Commission reliance on defining the term “large” amounts of grassroots lobbying expenditures) was arbitrary. Counsel replied the amount was selected to quantify language open to further interpretation by the Ethics Commission, which lacked specific rulemaking authority to make that determination.

Continuing his line of questioning, Senator Stuart asked for the difference between permissive and required rulemaking.

Counsel reiterated the Joint Bill-drafting Committee was leaning toward letting the statute speak for itself rather than requiring the Commission or other agencies from reciting Code in a rule when statutory language was sufficient.

In response to the remainder of Senator Stuart’s questioning, Ethics Commission Chief Counsel Teresa Kirk said Ethics Commissions in other states are housed under various state agency jurisdictions, including agencies in charge of elections. Senator Stuart intimated the Commission could be placed under the executive branch.

The Senator also inquired about transparency. Ms. Kirk said the rise of online access to information “pushes” agencies to place more information online.

Senator Stuart also wanted to know whether West Virginia’s lobbyist and lobbying laws require disclosure of the money lobbyists receive and, in addition to compensation, how much lobbyists’ employers provide to individual lobbyists.

Ms. Kirk responded that West Virginia’s law requires a lobbyist to list his or her “employer” but is limited with tracking additional information, although lobbyists’ expenditures are available online, but not the salaries lobbyists derive from “employers.”

Driving his point, Senator Stuart commented that a lobbyist could represent multiple clients without the public knowing the compensation lobbyists receive from various employers.

The bill includes technical amendments and language revision, according to Committee Counsel.

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

The House Judiciary Committee’s companion measure includes amendments directing the Ethics Commission to provide greater access to lobbyists’ registrations via online means.

Senator Stuart announced he is seeking election to the Office of Attorney General.

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