From the Well | January 30, 2024

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86th West Virginia Legislature

State Capitol

January 30, 2024

West Virginia News Headlines

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PENSIONS: The House Pensions and Retirement Committee passed two similar bills affecting the Deputy Sheriffs Retirement System and the Municipal Police Officers and Firefighters Retirement System.

COLD CASES: The Senate Judiciary Committee unanimously passed Committee Substitute for Senate Bill 539, which would create a centralized database for cold cases.

DRIVER’S LICENSES: The House Committee on Technology and Infrastructure passed House Bill 5019, which clarifies the surrender and return of a license not required for disqualifying or downgrading a driver’s license.

DUI TESTS: The House Committee on Technology and Infrastructure y passed House Bill 5039, which is related to implied consent laws and the process for revoking a person’s driver’s license if he or she refuses a secondary chemical test after being arrested for driving under the influence (DUI).

MENTAL HYGIENE: The House Health and Human Resources Committee approved legislation that creates a new system for mental hygiene proceedings to be overseen by the state Supreme Court of Appeals.

PARENTAL RIGHTS: The House Health and Human Resources adopted House Bill 4796, which addresses the custody of children.

REORGANIZATION: The House Health and Human Resources Committee adopted the Senate version of legislation that establishes an Office of Inspector General.

EDUCATION SURVEY: The Senate Education Committee reviewed results of a survey provided by State Superintendent of Schools Michele Blatt.

SOCIAL MEDIA: The House Technology and Infrastructure Committee passed legislation to establish a method for holding social media platforms liable if they allow minors to access their services without verifying parental consent.

DATA SAFEGUARDS: The House Technology and Infrastructure Committee approved House Bill 5338, which creates a safe harbor for businesses that implement reasonable cybersecurity measures and establishes privacy protection standards for data controllers and processors.

To provide for oversight and authority governing community air monitoring programs

HB5045

Related to the administration of the West Virginia Water Pollution Control Act, and Underground Carbon Dioxide Sequestration and Storage

House Bill 5018 provides the Department of Environmental Protection (DEP) with the authority to govern community air-monitoring programs to ensure proper standards for data collection and evaluation. It clarifies that community air-monitoring data could be considered by the DEP in determining whether an investigation of a potential pollution source is needed. However, the bill states that neither DEP nor a third party can use community air-monitoring data as evidence against the owner or operator of a stationary source, such as a factory.

The bill allows DEP to make rules for operating community air-monitoring programs and ensure data is scientifically valid. It does not grant any right to access private property for monitoring. A committee substitute was proposed with minor changes to clarify language around use of the data in lawsuits.

House Bill 5045 relates to West Virginia’s Water Pollution Control Act. Its statutes involve underground carbon sequestration and storage. The bill aims to help West Virginia obtain primary enforcement authority from the EPA over Class 6 injection wells, which inject carbon dioxide underground for sequestration.

The bill aims to strengthen West Virginia’s regulatory primacy over carbon-sequestration wells while maintaining environmental protections.

It makes several changes:

·     amends both laws to cross-reference each other regarding carbon-sequestration regulation;

·     requires permits and certificates of completion for carbon-sequestration wells to meet class 6 injection well requirements;

·     increases the minimum time between injection ending and certificate issuance from 10 to 50 years or allows a shorter site-specific timeframe determined by DEP rules;

·     adds exceptions to liability transfer so permit holders remain responsible for non-compliance, contamination migration, and pre-existing issues;

·     clarifies DEP must implement the laws consistently with the Safe Drinking Water Act regarding underground injection control of carbon-dioxide storage.

Relating to the Deputy Sheriff Retirement System

HB 5269

Relating to the Municipal Police Officers and Firefighters Retirement System

Both bills clarify payment upon the death of a participating member with less than 10 years of contributory service and clarify the surviving spouse benefits when a member dies from duty or non-duty related causes. Contributing service is substituted for credited service.

Additionally for the Deputy Sheriffs Retirement System, the legislation clarifies the age calculation for a member who elected early retirement but then returned to work and subsequently retired.

Creating cold-case database

A cold case is defined as any investigation into a violent crime, missing person, or unidentified human remains where all investigative leads have been exhausted and the investigation remains incomplete.

Under the bill, the database will be retained indefinitely with the West Virginia Fusion Center. Counsel explained that all original evidence stays with the law enforcement agency.

Asked by Senator Mike Stuart of Kanawha County whether if there was a time frame for declaring a “cold case,” Counsel said that there is no concrete time frame other than when law enforcement has exhausted all possible leads.

Counsel added that the database at the West Virginia Fusion Center will serve as a resource for law enforcement and could be used to identify similar crimes or when a pattern might show up in the data.

Relating to surrender and return of license not required for disqualifying or downgrading a driver’s license

The bill that would allow people who are disqualified from having certain endorsements on their CDL, such as for hazardous materials, to continue using their regular driver’s license for personal use instead of having to surrender it.

Currently, if someone loses an endorsement, he or she has to surrender his or her CDL license and get a new regular driver’s license. This bill would let the driver keep using the same physical license.

It was described as a convenience measure to avoid an extra trip to the DMV for the license holder. However, some Committee members expressed concern it could allow unqualified drivers to operate vehicles requiring those endorsements.

The process for disqualifying or downgrading a CDL license administratively without a hearing was described. Drivers’ statuses are tracked in databases employers can check.

The costs of producing a new license versus keeping the same physical one were discussed, as was comparing policies in other states. Enforcement of surrender requirements or lack thereof in some states also was covered.

The bill now heads to the full House for consideration.

Relating to authorizing the West Virginia Division of Motor Vehicles to enforce administrative penalties for the civil offense of refusing a secondary chemical test

Currently, magistrates are not consistently revoking licenses for refusing secondary chemical tests, which risks federal highway funding. The bill aims to give that authority to the Division of Motor Vehicles (DMV) instead.

There would be an administrative hearing process within DMV to appeal license revocations for refusing secondary tests. DMV believes it could absorb the additional hearings into their existing hearing process.

In 2021, there were 538 reported refusals of secondary chemical tests. That increased to 559 in 2022 and 687 in 2023. DMV believes it could handle the additional caseload from the hearings.

Questions were asked about how the refusal is reported to DMV, the current appeal process, and assurances that DMV’s administrative hearing process would be fair.

The bill now heads to the House Judiciary Committee.

Relating to deferred adjudication and pre-trial diversions for first offense DUI cases

Currently, individuals who refuse a secondary chemical test after being pulled over on suspicion of DUI are not eligible for diversion or deferred adjudication programs. This bill would remove that restriction on eligibility.

Some of the key points discussed include:

·     Deferred adjudication means the penalties are delayed until after a rehabilitation program is completed successfully;

·     Refusing a secondary chemical test is currently used as a defense in court, but removing the penalty could lead more people to always refuse the test;

·     Allowing refusals into diversion programs could provide more opportunities for rehabilitation while also allowing legal driving, but it may also incentivize more refusals;

·     The diversion program is separate from requirements for the ignition interlock program;

·     Expunging the criminal record does not erase the DMV record, so prior diversions would still be visible for subsequent offenses.

HB5020 now will go to the House Judiciary Committee for further consideration.

Relating generally to the creation of mental hygiene regions by the Supreme Court of Appeals

The bill:

·     Clarifies that mental hygiene evaluations and proceedings may be conducted by video technology. Proceedings, however, must comply with state Supreme Court specifications, including a requirement facilities provide technology that meets Supreme Court of Appeals specifications unless a mental hygiene commissioner orders an “in-person evaluation or proceeding. Each Certified Community Mental Health Center, County Sheriff’s Department, and Regional Jail shall provide technology that complies with Supreme Court of Appeals specifications to ensure meaningful interactions between a mental hygiene commissioner, respondent, witnesses, and evaluators during evaluations and proceedings, so that a respondent’s due process rights are protected.”

·     Establishes statewide coverage for mental hygiene evaluations, permitting a mental hygiene commissioner to exclude evaluator testimony based on the West Virginia Rules of Evidence. Additionally, each Certified Community Mental Health Center is to ensure that at least one examiner is available to provide “uniform and continuous coverage” in each region, including after hours, weekends, and holidays.

·     Removes licensed professional counselors and licensed independent social workers as approved examiners for mental hygiene evaluations.

·     Requires hearings for any commitment period of longer than 90 days and prohibits any person from being civilly committed to longer than 120 days without a hearing to determine whether the individual continues to meet commitment criteria.

·     Strikes obsolete language regarding transcripts of proceedings to circuit court of county of residence.

·     Stipulates a mental hygiene commissioner employed by the Supreme Court must be a “competent attorney (who is to receive) receive training from the Administrative Office of the Supreme Court prior to presiding over proceedings. Training topics shall include acute psychiatric cases, geriatrics, developmental disabilities, and substance abuse.”

·     Clarifies that if the Supreme Court of Appeals implements mental hygiene regions statewide, provisions of the current code regarding appointment and supervision of mental hygiene commissioners by circuit judges or compensation no longer apply.

·     Authorizes physicians, psychiatrists, advanced nurse practitioners with psychiatric certification, and physician assistants who meet state law licensure requirements to examine “(respondents) in a mental hygiene proceeding in any region, circuit, or county (based on) their particular expertise in the areas of mental health, mental hygiene, or substance abuse disorders. However, the presiding circuit court, magistrate court, or a mental hygiene commissioner may exclude an examiner’s testimony if it determines that the examiner’s knowledge, skill, experience, training, or education is insufficient to provide expert testimony under standards consistent with the West Virginia Rules of Evidence.”

·     Establishes standards whereby patients who are determined by medical officials not to be complying with treatment plans or that the patient’s condition has deteriorated so that “a least restrictive treatment option is no longer viable and the conditions requiring the original commitment have returned, these individuals may be readmitted to a mental health facility. The individual or the individual’s attorney may request a hearing after readmittance to determine whether revocation was appropriate. Once an individual is readmitted to a mental health facility, (the above time frames) continue, (although an) adult person (is not limited) from filing a new application for involuntary commitment against an individual under a temporary observation release or otherwise prohibit medical or law enforcement intervention in a life-threatening situation.”

The measure has a second reference to House Judiciary.

Relating to parental rights for those receiving healthcare treatment

In terms of hearings for determination of compliance with laws relating to process, the bill requires notice to be given to the department, any foster or “pre-adoptive” parent, and any relative providing care for the child.

The bill was amended so laboratory testing results relating to MAT programs comply with federal Food and Drug Administration guidelines and provides for release of results in compliance with custody rights of parents.

The measure has a second reference to the House Judiciary Committee.

Relating to organization of Office of Inspector General

The Office of Inspector General is defined as a “separate and autonomous agency within the Department of Health.”

As stipulated in statute, the following agencies and boards, including all of the allied, advisory, affiliated, or related entities and funds associated with any agency or board, are transferred to, incorporated in, and administered as a part of the Office of the Inspector General.

The Office of the Inspector General includes:

·     Office of Health Facility Licensure and Certification;

·     Board of Review;

·     Foster Care Ombudsman;

·     Olmstead Office;

·     Investigations and Fraud Management;

·     Quality Control;

·     Mental Health Ombudsman;

·     West Virginia Clearance for Access: Registry and Employment Screening; and

·     Human Rights Commission.

The extensive legislation relates to the organization of the Office of Inspector General, which is authorized to investigate fraud, waste, and abuse of Department of Human Services, the Department of Health, and the Department of Health Facilities’ funds.

Other duties include:

·     Cooperating and coordinating investigative efforts with the Department’s Medicaid Fraud Control Unit as well as other cooperating and coordinating investigative efforts with departmental programs and other state and federal agencies to ensure a provider is not subject to duplicative audits.

·     Organizing a board of review, consisting of a Chairman appointed by the Inspector General and as many assistants or employees as may be determined by the Inspector General and as may be required by federal laws and rules respecting assistance. The board has powers of a “review nature and such additional powers as may be granted to it by the Inspector General and as may be required by federal laws and rules respecting assistance.”

·     Establishing, through rule, appeals procedures that comply with or are required by federal laws and rules relating to federal assistance, including an opportunity to be heard by the board of review, a member thereof, or individuals designated by the board, upon claims involving denial, reduction, closure, delay, or other action or inaction pertaining to public assistance.

·     Issuing subpoena powers relating to investigations for alleged fraud, waste, and abuse or behavior that threatens public safety or that demonstrates negligence, incompetence, or malfeasance within the Department of Health, Department of Human Services, or Department of Health Facilities.

·     Staffing, budgeting, reportage to state agencies, and a directive to best strive to meet the goals of the office, including legislative or other recommendations, including consultation with the Legislature.

Committee amendments are designed to clarify statutes relating to the office and make a technical cleanup.

A final amendment clarifies that the Inspector General, Director of The Office of Health Facility Licensure and Certification, and the Director of the Investigations and Fraud Management “may not be the same person.”

Superintendent Blatt told Committee members the “West Virginia Department of Education / WV Legislative Survey Educators” was taken with input from the West Virginia Senate.

According to Superintendent Blatt, 2,222 educators responded, with the survey garnering responses from educators in all 55 counties, four charter schools, as well as the Schools for the Deaf & Blind, and institutional schools the WVDE oversees, including schools for school-age students who may be under state care.

Survey questions dealt with educator satisfaction based on workload, resources, professional development, administrative and parental support, among other topics, as well as open-ended questions.

Educators stated specific classroom challenges related to “student behavior,” “student absences,” and “student apathy.”

Educators also identified onerous requirements emanating from “paperwork,” “testing,” “repetitive, unhelpful, or too many (professional development) trainings,” “meetings,” and attending to “other extra, non-teaching tasks.”

Survey respondents also identified the need for “instructional materials,” “technology (hardware/software),” “classroom supplies,” “staffing considerations,” and “time” as resources to aid their effectiveness.

Respondents also provided suggestions for staffing incentives, including applying use of unused leave toward retirement, and “non-traditional” school weeks.

In terms of “Legislative / Policy Barriers,” educators noted, among other items, “one-size-fits-few approaches.”

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Committee members questioned “social promotion,” as well as the parental involvement aspects of the survey and how to motivate students.

Superintendent Blatt, in response to a question from Senator Jay Taylor of Taylor County, said the WVDE did not survey students, although she said the WVDE uses focus groups to secure student perceptions of schooling when the Department reviews schools.

The Superintendent agreed with Senator Taylor’s assessment that culture in some communities may be perceived as “not putting a value on education. (It’s) the culture and mindset of some of our communities.”

Senator David Stover of Wyoming County, who said he served as an educator for 28 years, wanted to know about the effects of “social promotion,” meaning, Stover said, the state’s graduation rate, while high (among the highest of states in the nation) may not mean students are workforce or career-ready because school districts, to meet student graduation requirements, may promote students who are not ready for next level grades.

Superintendent Blatt noted the WVDE is reviewing that issue, which prompted Stover to say, “This is a question I’ll need to assess in a year or two.”

The Superintendent noted passage of the Third Grade Success Act is designed to address the situation as well.

Child Social Media Protection Bill

The bill would require social media companies to verify the age of users in West Virginia and get parental consent before allowing minors to open accounts. It outlines rules for parental access to minor accounts.

Concerns were raised about whether the Department of Human Services is the right agency for rulemaking, given its focus on children rather than technology.

Questions were asked about whether social media platforms might stop serving West Virginia users because of the restrictions and liability risks. It was noted that some platforms have pushed back on similar bills.

Exemptions for services like YouTube, direct messaging, and file-sharing were discussed. Some felt those exemptions excluded platforms still posing addiction and bullying risks.

The bill’s sponsor, Delegate Wayne Clark of Jefferson County, explained the impetus was protecting children from addictive and harmful content based on his experiences with a daughter struggling with an eating disorder promoted on social media.

The effectiveness of similar laws in other states is unclear because they are new, but no platforms have stopped service so far.

The House Judiciary Committee will decide whether the bill receives further consideration.

Relating to the Consumer Data Protection Act and establishing a framework for controlling and processing personal data in the State

The bill was amended to remove a private right of action.

The House Finance Committee is the next stop for the bill.

Remote Patient Outcome Improvement Act

The bill would make it legal for Internet providers to share wireless network information to pre-program devices for patients and troubleshoot connectivity issues without liability.

It also would require health insurers to report data on usage of those services to employers but not private medical information.

Committee members discussed how legislation could help enable remote monitoring and prevent avoidable emergency room visits by helping ensure that patients have Internet access for transmitting medical data.

They also discussed how insurers already may pay for separate cellular connections for monitoring devices and how the bill could help reduce those costs by using one home Internet connection.

The next stop for HB5310 is the House Health and Human Resources Committee.

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