From the Well | January 31, 2024

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86th West Virginia Legislature

State Capitol

January 31, 2024

West Virginia News Headlines

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SENIOR EDUCATION: The House Education Committee passed House Bill 4375, which aims to provide community education programs for senior citizens throughout West Virginia.

APPEALS: Committee Substitute for Senate Bill 428 passed the House Government Organization Committee, establishing that appeals from administrative rulings in West Virginia are to be filed with the Intermediate Court of Appeals rather than circuit courts.

ARTIFICIAL INTELLIGENCE: The House of Delegates Select Committee on Artificial Intelligence heard about the good and bad of Artificial Intelligence.

DIGITAL WALLET: The House Select Committee on Artificial Intelligence took a step toward making it easier for professionals to store their certifications and licenses online and in one place.

POLICE SERVICE: The House Judiciary Committee adopted legislation to change the requirements for employment as a police officer.

SCHOOL SECURITY: The House Judiciary Committee adopted House Bill 4851, which provides procedures for county boards of education, public charter schools, and private or religious schools to employ security officers.

SCHOOL OFFENSES: The Senate Judiciary Committee passed legislation to modify elements of a felony offense pertaining to when a school employee or volunteer engages in sexual intercourse, intrusion, or contact with students.

CHILD CUSTODY: The Senate Judiciary Committee passed Committee Substitute for Senate Bill 516, which would allow venue modification in cases of custodial allocation.

BAN THE BOX ACT: The House Workforce Development Committee passed House Bill 4229 to create the Ban the Box Act, which would prohibit public employers from asking applicants for employment to disclose information concerning their criminal record or history.

VOTING: The House Judiciary Committee adopted legislation that could amend the state Constitution to cite West Virginia residency as an requirement for voting.

INFRASTRUCTURE: The House Judiciary Committee adopted House Bill 5091, which addresses damaging, destroying, stealing, or the attempted theft of infrastructure.

CORRIDOR H: The Senate Committee on Economic Development passed Senate Bill 571, which would create the Corridor H Advanced Energy and Economic Corridor Authority to promote economic development and job growth.

TOBACCO CESSATION: The House Health and Human Resources Committee adopted House Bill 4983, which would take $5 million from the state’s Rainy Day Fund for tobacco cessation efforts.

CARDIAC HEALTH: The House Health and Human Resources adopted legislation intended to provide a more well-rounded program of testing for potential cardiac health problems.

RULE CHANGES: The House Health and Human Resources Committee adopted Senate Bill 31, which involves rules covering collection and exchange of data related to overdoses; substantiation of child abuse or neglect; and domestic violence program licensure standards.

Require all recovery residences to be registered with the state

HB5079

Relating generally to the funds for patients of in-state 28-day addiction clinics who do not complete the 28-day program

HB5239 would require licensure for recovery residences and residential substance use disorder treatment programs in West Virginia. The bill defines terms related to recovery housing and treatment programs and establishes an application process for licensure and sets program requirements around things like continuum of care, treatment services, screening, and testing. It also creates a process for license revocation if requirements are not met and provides for administrative appeals and establishes reporting requirements and renewal procedures.

HB5079 relates to creating a refund process for payers of substance abuse treatment programs when an individual leaves a program early or does not complete it.

The House Committee on Prevention and Treatment of Substance Abuse heard presentations from Emily Birkhead, Executive Director of the West Virginia Alliance of Recovery Residences and Stacey Nichols of Oxford House.

She discussed the continuum of care for substance use disorder treatment. She highlighted the differences between treatment and recovery, explaining treatment is clinically supervised and can include therapy and medications, while recovery emphasizes ongoing peer support.

Ms. Birkhead explained levels of recovery housing from supervised residential facilities to independent living. She also discussed West Virginia’s certification process for recovery residences, which involves application review, staff and resident interviews, and on-site visits.

Certification helps ensure that residences provide a supportive environment for sustained recovery. The goal of recovery residences, she said, is to provide guidance while allowing autonomy because recovery is a long-term process that extends beyond initial clinical treatment

Stacey Nichols presented on behalf of Oxford House and shared these points:

Oxford House is a model of democratically run, self-supporting recovery residences that has been in operation since 1975.

Research studies have found high rates of abstinence among Oxford House residents. One study found 86.5% abstinence after one year.

West Virginia has 24 Oxford Houses providing 189 beds. They are chartered under the Oxford House Inc. system, not state certification.

In West Virginia, Oxford House only has one outreach staff member split between two states, limiting support to houses.

Ms. Nichols urged recognition of Oxford House Inc. as a certifying body to expand housing options in West Virginia through increased support for houses.

Internally collected West Virginia house data shows 82.6 to 83.6% 6-month abstinence rates, though not as rigorous as external research studies.

Provide programs to educate senior citizens

HB4375 aims to provide community education programs for senior citizens throughout West Virginia. It would require county boards of education to implement programs in eight subject areas, such as education, recreation, health, and social services.

State Superintendent Michele Blatt answered questions as Committee members expressed concern about the costs of such programs.

It would cost an estimated $49,920 annually for each county to hire eight instructors at $30/hour to teach the eight community education classes required by the bill.

With 55 counties in West Virginia, the total estimated annual cost for instructors statewide would be about $2.75 million.

An additional $100,000 was estimated for each county’s technical education center and board of education office to market the new programs.

There also would be costs to hire an annual coordinator at each technical center and board of education office to oversee the instructors and programs, but a dollar amount was not specified for those coordinator positions.

Establishing appeals from administrative rulings are to be filed with Intermediate Court of Appeals

SB428 establishes that appeals from administrative rulings in West Virginia are to be filed with the Intermediate Court of Appeals rather than circuit courts. Specifically, it amends Section 12 of Article 11B of Chapter 19 of the West Virginia code to change the reference to circuit courts to the Intermediate Court of Appeals.

The change aligns the code with the jurisdiction given to the Intermediate Court of Appeals in 2021 over appeals from administrative actions and final orders. It also cleans up conflicting language regarding the number of days to file an appeal.

She expressed excitement about discussing AI’s importance and West Virginia’s potential to be a leader in the field.

Ms. Cyphert provided an overview of AI, defining it as training computers to perform tasks normally done by humans. She explained subfields, such as machine learning, which learns from data, and generative AI, which can generate new content. She also discussed large language models, such as GPT-3.

She also noted that AI systems may lack of “explainability” (known as the “black box” problem) and generation of fake information through “AI hallucinations.” She highlighted the importance of developing explainable AI to address these challenges.

She summarized the Biden administration’s recent executive order on AI, noting its directives to more than 50 federal agencies to take actions addressing areas such as safety, innovation, job impacts, bias, privacy, and international leadership.

Ms. Cyphert described initiatives at WVU to educate students and the public on AI through classes, research projects, and outreach efforts. The speaker emphasized collaboration among universities in the state and viewed West Virginia as well-positioned to be a leader in the field.

Potential applications of AI in medicine through image screening and early diagnosis were discussed. The ability of generative AI to autonomously create new music from deceased artists was also examined, along with related legal and ethical considerations.

Ms. Cyphert explored challenges of regulating emerging technologies at both the state and federal level, using examples like the Internet, blockchain, deepfakes, and AI. She stressed the need for balance between innovation and oversight while involving impacted communities.

She noted concerns about privacy infringements, bias, election interference, and disproportionate impacts on minorities from technologies, such as facial recognition. She emphasized the importance of transparency, community input, and continued education in policymaking.

To create a ‘digital wallet’ to keep all certifications/licensure accrued by the person in one place

The Committee passed House Bill 5161, permitting the Secretary of State, through the one-stop business portal, to create online infrastructure for a digital wallet that gives an individual a place to store certifications and licenses.

While the online infrastructure will be the responsibility of the Secretary of State to create and maintain, it will ultimately be the responsibility of the individual to organize the credentials and to ensure their accuracy.

If the bill becomes law, the digital wallet will serve as a repository of all licensures and certifications in one spot for easy reference. In addition to certifications and licensures, all state and federal identification documents also may be stored in the digital wallet.

The bill will now head to the House Committee on Technology and Infrastructure for further consideration.

Relating to civil service for deputy sheriffs

Under the proposed legislation, combined into HB5122, the effect of the legislation is to allow persons older than age 46 who must also pass physical acuity tests and meet other statutory, county or municipal requirements, to serve in law enforcement capacities, meaning they could retire at age 65 (or as required by other federal and state laws).

One would have to be age 18 to be employed as a law enforcement officer.

HB5133, as introduced, would have removed the age limit of 40 for employing policemen, police matrons, special school zone and parking lot or parking building police officers.

Modifying felony offense of sexual misconduct of school employee or volunteer

The bill changed the description “the school,” which has been interpreted to be the school where a child is enrolled to “a public or private school.”

An amendment from Senator Mike Woelfel of Cabell County was adopted to add “school resource officer” after volunteer.

An exception is made for the “Grow Your Own Program,” which allows high school students to earn college credits toward a teaching degree to help alleviate the teacher shortage.

In response to a question from Senator Patricia Rucker of Jefferson County, Laura Bissett, attorney for the West Virginia Department of Education, said a high school student could be an apprentice but have a relationship with another high school student.

“These high school students who are apprentices could have a felony because they had a high school boyfriend or girlfriend,” Ms. Bissett said. She noted that the exception ends when they no longer are secondary students.

After telling the Committee that the hour was late but he had an amendment that would wake everybody up, Senator Mark Hunt of Kanawha County said he wanted to add an amendment allowing the possible penalty of chemical castration because the bill opened Article 8B.

Senator Mike Caputo of Marion County asked whether the amendment was germane to the bill. Chair Charles Trump of Morgan County ruled that the bill is narrowly tailored and the penalty did not fit the section or the purpose of the bill that is before the committee. Senator Trump told Senator Hunt he could introduce a separate bill for that penalty.

To allow for public and private schools in West Virginia to employ security personnel

The legislation, versions of which have been considered in past sessions, defines a school security officer as an “individual who is employed by a local school board, public charter school, or private or religious school for the singular purpose of maintaining order and discipline, preventing crime, investigating violations of the policies of the school board, public charter school, or private or religious school, and reasonably detaining students committing an offense that constitutes a breach of the peace on school property, school buses, or at school-sponsored events and who is responsible solely for ensuring the safety, security, and welfare of all students, faculty, staff, and visitors in the assigned school.”

The bill directs the Governor’s Committee on Crime, Delinquency, and Correction, in consultation with the Division of Protective Services School Safety Unit, is to establish “compulsory minimum standards for employment, job-entry, in-service training curricula, and certification requirements for school security officers … with training standards … (specific) to the role and responsibility of school security officers,” including:

·     relevant state and federal laws;

·     school and personal liability issues;

·     security awareness in the school environment;

·     mediation and conflict resolution, including de-escalation techniques such as a physical alternative to restraint;

·     disaster and emergency response;

·     awareness of systemic and individual racism, cultural diversity, and implicit bias;

·     working with students with disabilities, autism spectrum disorders, mental health needs, substance use disorders, and past traumatic experiences; and

·     student behavioral dynamics, including child and adolescent development and brain research.

The Division of Protective Services School Safety Unit is granted authority to establish an advisory committee to assist in developing the standards and certification requirements for school security officers.

Additionally, the Division of Protective Services School Safety Unit requires a school security officer “who carries a firearm (as permitted in the bill) in the performance of his duties to provide proof that he or she has completed both basic and in-service training courses provided by a federal, state, or local law-enforcement agency that includes training in active shooter emergency response, emergency evacuation procedure, and threat assessment,” including “breach of the peace.”

The Committee adopted amendments that would require parents of all students under age 21 to be notified in cases where students are detained for school safety matters. In cases where the school security officer determines the matter includes “immediate danger” to the school, its students, employees or others, he may “detain” the student, although parents or guardians will be notified.

There were questions about whether students detained should be read “Miranda” rights, which became the genesis of the above amendments.

The Committee, by a 15-10 vote, rejected a proposed amendment by Delegate James Robert “JB” Akers II of Kanawha County to strike the term “systemic” racism from the bill.

A representative of the Capitol Police, which is responsible for providing training regarding school safety (as the Division of Protective Services), stated the ”awareness of systemic and individual racism, cultural diversity, and implicit bias” is customary training provided to security officers, and the advisory committee would be responsible to determine clarification of the language.

The bill permits a school security officer to carry a weapon based on several criteria, including service as a law enforcement officer within 10 years “immediately prior to being hired by” the school(s) or employment by a U.S. law enforcement agency or any state or political subdivision where the officer’s duties were substantially similar to those of a law-enforcement officer, as defined in code.

The law enforcement officer must have retired or resigned from their position –- last held within 10 years –- in “good standing.” The law enforcement officer also would have to meet the legislation’s qualifications for employment and completion of required training, which is to provide proof to the Division of Protective Services School Safety Unit of having completed active shooter training and training that includes emergency response, emergency evacuation procedure, and threat assessment.

The school entity is responsible for providing equipment for school security officers.

The employing entity is responsible for soliciting input from the chief law-enforcement officer of the locality regarding the qualifications of the school security officer and receiving verification from the chief law-enforcement officer that the school security officer is not prohibited by state or federal law from possessing, purchasing, or transporting a firearm if part of the entity’s assigned duties for the position.

Determining venue for custodial allocation actions independent of divorce

Guidelines include where the child has personal relationships and where there is the most evidence.

The Committee Substitute expands the scope to include enforcement of custody determination and, if the venue is transferred, other issues, such as child support.

Senator Patricia Rucker of Jefferson County asked Counsel what problems the bill is attempting to address. Counsel explained that there could be an initial order that was issued in Kanawha County, the father has moved to Monongalia County, and the mother has moved to Jefferson County. The bill would allow the venue to be changed rather than make both come to Kanawha County.

Family Court Judge Susan Riffle from Marion County told the Committee, “I think it’s a good bill. We’ve needed a venue statute for awhile.”

In a discussion of “venue shopping,” she pointed out that the discretion to not transfer a case helps to stop venue shopping.

Family Court Judge Brittany Ranson Stonestreet told the Committee that essentially there is no provision in current law to allow for venue transfer, although it could be done by agreement. She added that it clarifies the existing venue statute in state, but she pointed out that out-of-state issues become “a whole other matter.”

Ban the Box Act

The act would prohibit public employers from asking applicants for employment to disclose information concerning their criminal record or history. It is second referenced to House Judiciary.

If public employers are required by state or federal law that a criminal history inquiry is required as a preliminary qualification, the act does not apply. The bill gives examples and may include law enforcement, community safety, or any position that involves direct interaction with minors or the elderly.

The act encourages similar hiring practices for local governments and private employers in the state, but it is not mandated.

Amending the Constitution to prohibit persons not United States citizens from voting in any election held within this state

The proposed amendment states:

“The citizens of the state shall be entitled to vote at all elections held within the counties in which they respectively reside; but no person who is a minor, or who has been declared mentally incompetent by a court of competent jurisdiction, or who is under conviction of treason, felony or bribery in an election, or who has not been a resident of the state and of the county in which he offers to vote, for thirty days next preceding such offer, shall be permitted to vote while such disability continues; but no person in the military, naval or marine service of the United States shall be deemed a resident of this state by reason of being stationed therein, nor shall any person who is not a citizen of the United States be entitled to vote at any election held within this state.

“Resolved further, That in accordance with the provisions of article eleven, chapter three of the Code of West Virginia, 1931, as amended, such amendment is hereby numbered “Amendment 1″ and designated as the ‘Citizens Voting Amendment’ and the purpose of the proposed amendment is summarized as follows: ‘The purpose of this amendment is to recognize that persons who are not citizens of the United States cannot vote in West Virginia elections.'”

West Virginia Critical Infrastructure Protection Act

As explained by Committee Counsel, the revised legislation “is not a copper theft bill.”

Rather, Counsel said, the legislation applies broadly to damaging, destroying, stealing, or attempted theft of infrastructure and, as such, encompasses utility pipelines, telecommunications infrastructure, and wireless infrastructure.

Fines for those convicted of violating the statute were raised from $25,000 to potentially $100,000, with the latter fine also including five to 10 years imprisonment.

Delegate Geoff Foster of Putnam County first sought to amend the bill by addressing forms of protest that result in property damages. Many Committee members perceived the amendment as implicating unions and unionizing efforts.

Based on considerable discussion, Delegate Foster narrowed the scope of his amendment so that union picketing or unionizing efforts are not seen as “trespassing,” although related destruction of properties, as defined in the bill and in related sections of laws, could be applicable.

The amendment was adopted by a 13-10 vote.

Elaine Harris of the Communications Workers of America addressed various questions concerning union efforts in terms of strikes and picketing.

Based on Counsel’s observation, the original Foster amendment could conflict with other statutes and possibly be considered unconstitutional.

Additionally, the bill states items of personal property used or intendent for use to perpetrate theft or damage to infrastructure are subject to forfeiture as stated in the West Virginia Contraband Forfeiture Act.

Creating WV Advanced Energy and Economic Corridor Authority Commission

The highway runs through Lewis, Upshur, Barbour, Randolph, Tucker, Grant, and Hardy counties in West Virginia.

The Authority would consist of 16 members representing each county’s economic development agency and regional planning councils, as well as seven public members appointed by the Governor representing utilities, business, technology, energy, and manufacturing along the Corridor. It would seek public-private partnerships and enter contracts to promote expansion of jobs and economic development along the corridor.

The Authority would be required to submit an annual report to the Joint Committee on Government and Finance, outlining its activities from the past year.

Senators discussed that the county members would be selected by their respective county economic development agencies, and the Governor would appoint private-sector representatives.

Senator Chandler Swope of Mercer County, who sponsored similar legislation to create an I-73/74 economic corridor in southern West Virginia, expressed support for connecting the corridors.

Senator Bill Hamilton of Upshur County believes creating the authority will help improve connectivity in the region and boost tourist and commercial traffic by taking trucks off the more dangerous roads.

Overall, the Committee expressed support for the bill to promote further economic development along Corridor H.

SB571 now heads to the full Senate for consideration.

Require retailers to verify identification and age upon purchase of vape products

The Committee approved amendments increasing penalties for those convicted of breaking laws related to tobacco purchases, including both businesses, retailers and individuals.

Fines increase from the current $250 up to $1,000 for businesses and from $250 to $500 for individuals.

Current law defines three types of tobacco and tobacco-related products, which include “any product containing, made or derived from tobacco, or containing nicotine derived from tobacco, that is intended for human consumption, whether smoked, breathed, chewed, absorbed, dissolved, inhaled, vaporized, snorted, sniffed or ingested by any other means, including but not limited to cigarettes, cigars, cigarillos, little cigars, pipe tobacco, snuff, snus, chewing tobacco or other common tobacco-containing products.”

A “tobacco-derived product” includes electronic cigarettes or similar devices, alternative nicotine products, and vapor products.

The definition, in subsequent provisions of the statute, covers “any non-combustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved or ingested by any other means” and “vapor products,” but it excludes all tobacco or tobacco-related products regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic Act.

To fund the Tobacco Use Cessation Initiative

As explained by Committee Counsel, the bill would take $5 million from the state’s Rainy Day Fund, derived from interest collected on money the state received in the 1990s federal tobacco company settlement, and apply those funds to tobacco cessation efforts. The Bureau of Public Health would oversee the tobacco cessation program.

Delegate Matthew Rohrbaugh of Cabell County urged the Committee to support the legislation.

“We have to get serious…. Tobacco is the number one preventable cause of death (in West Virginia),” he said, citing federal health statistics showing West Virginia residents have the highest rate of use for tobacco products and lung cancer. Rohrbaugh said those two “factors are connected.”

Relating to cardiac response plans

According to the spokesperson, legislation adopted in 2017 requires use of a automated external defibrillator or automatic electronic defibrillators (AEDs) in schools. Cardiac arrest incidents provide a 70% survival rate compared to a 10% survival rate where an AED is not available.

The spokesperson said many school-related cardiac issues occur during athletic events, hence athletic trainers and others are present to provide CPR or related services, including use of AEDs.

The legislation directs the state Board of Education to develop a policy for implementation.

According to testimony, the state Board of Education supports the legislation.

The bill has a second reference to the House Education Committee.

Relating to extending managed care

Provisions of Senate Bill 300 were amended into the House-passed bill.

As explained by Counsel, language in SB300 relating to the foster care ombudsman and other revisions require alignment with provisions of SB300.

In response to a question by Senator Patricia Rucker of Jefferson County, Counsel said the eliminated reference to statutory language concerning “transition of foster care to managed care” by the end of the fiscal year effectively means “the transition” is settled until “we (the Legislature) determine otherwise.”

In response to another inquiry, Counsel said Aetna Insurance, which manages health insurance coverage, presented to the Legislative Oversight Commission of Health and Human Resources Accountability during 2023 interim meetings.

Based on that presentation, Counsel provided the Legislative Oversight Commission on Health and Human Resources Accountability (LOCHHRA) with proposals to better address the spectrum of health needs of students who are in foster care, including “special populations of foster care,” including children with various disabilities or conditions.

Counsel reported stakeholders are pleased with Aetna’s insurance coverage, based on information provided to LOCHHRA.

In terms of bills that address identical sections of state law, the Legislature provides deference to the legislation last adopted to amend that section. In some cases, given the Legislature’s consent, if two bills create and amend a new section of law, Legislative Services may provide the last bill adopted with a newly established section. That occurred last year with two Senate bills that amended the same section of Chapter 18, which includes public education laws.

Authorizing Department of Human Services to promulgate legislative rules 

Committee amendments for the child abuse rule has provisions relating to felony offenses created in the same household by a parent. The domestic violence rule was amended to include references to fatality and mortality data review and collection.

Excepting persons previously commissioned as a notary public from requirement to have a high school diploma or its equivalent in order to be recommissioned

as a notary public

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