From the Well | February 20, 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

February 20, 2024

West Virginia News Headlines

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BACKUP LAB: The Senate Judiciary Committee passed a bill to allow the Marshall University Forensics Lab to serve as a backup for the State Police Forensic Lab.

MENTAL HYGIENE CHECKS: The Senate Judiciary Committee rejected a bill that would provide for immunity for mental health providers who are involved in mental-hygiene checks.

LAKEN’S LAW: The Senate Education Committee passed a legislation that establishes Laken’s Law and requires each school district in West Virginia to provide age-appropriate, research-based instruction to students in grades 6 through 12 about to the dangers of fentanyl.

ELIMINATING CON: The House Health and Human Resources Committee approved eliminating the Certificate of Need (CON) for hospitals.

CHILD ABUSE AND NEGLECT: The Senate Health and Human Resources Committee approved legislation that involves assessing responses in child abuse and neglect cases.

BLOOD-PRESSURE MONITORING: The Senate Health and Human Resources Committee approved a bill that provides a validated blood-pressure monitoring device to Medicaid enrollee(s) diagnosed with uncontrolled hypertension while pregnant or who are immediately post-partum.

EXAMINATION LIMITS: Committee-passed legislation specifies certain conditions for the examination of anesthetized patients.

WEIGHT LOSS: The Senate Health and Human Resources Committee passed Senate Bill 743, which establishes a “medically supervised weight loss program” to be administered by the West Virginia Bureau for Medical Services.

CHILD PLACEMENT: The Senate Health and Human Resources Committee passed legislation that adds a new section of law that directs the Bureau for Social Services to report the performance of the child-placing agency.

OIL AND GAS RECOVERY: The Senate Energy, Industry and Mining Committee passed House Bill 5268, which clarifies that fluids or gases may be injected into horizontal wells to enhance recovery of oil and natural gas.

SNAP BENEFITS: The Senate Finance Committee adopted Senate Bill 562, which would expand the mandatory employment and training requirements necessary to receive Supplemental Nutrition Assistance Program (SNAP) benefits.

SURROGACY AGREEMENT: Senator Tom Takubo told the Senate Judiciary Committee that the subcommittee appointed to work on Senate Bill 575, known as the surrogacy bill, has reached agreement and has a report for the full Committee.

Amending certain qualifying offenses to enhance sentences of repeat offenders

Counsel said the statute is usually referred to as the “habitual-offender” statute. The bill sets out several qualifying felony offenses, and any one or two felony convictions can qualify a person as a habitual offender.

The third offense, which would trigger what often is referred to as the “three strikes, you’re out” rule, can result in life in prison with no parole. Counsel explained the minimum sentence would double for the second offense,  and the third felony offense could be 15 years to life.

Counsel explained that proportionality has been a huge issue in the habitual offender statute and is part of the reason for the bill. Rachel Romano, Harrison County Prosecuting Attorney, added information on behalf of the Prosecuting Attorneys Association. She said that is old statute, and relatively minor changes were being made, including the addition of some other felony offenses such as grand larceny and felony escape.

Prosecutor Romano also discussed proportionality, explaining that it will always come into play, and the third offense usually has to include violence to be a third-offense trigger. There is also a time qualification.

“If the second qualifying offense if not within the last 20 years, we can’t trigger the third offense,” she said..

Chairman Charles Trump of Morgan County, serving as Vice Chair for the meeting, added that his Committee started the felony offense list about two to three years ago in his Committee.

“We’re catching triggering offenses that haven’t been on the list,” he said.

Establishing and administering DNA identification system

The Marshall Lab also would serve as an additional lab for taking samples from unidentified human remains.

The information would be included in the state DNA data bank, and both the Marshall Lab and the State Police Lab would have access to DNA from unidentified remains.

Mark Sorsaia, Cabinet Secretary of the Department of Homeland Security and a former Prosecutor, told the Committee that this memorandum of understanding between the two labs would be “revolutionary” in West Virginia, adding that state-of-the-art forensic science would be used to solve cold cases and identify remains. He gave an example of how DNA helped solve a 40-year old murder when he was Putnam County Prosecutor.

Dr. Terry Fender, Interim Director of the Marshall Forensic Science Center, described the Center’s long history of working with the State Police crime lab.

“This bill would position us to help the Medical Examiner but also become a national NamUS lab,” Dr. Fender said.

NamUS is the national information clearinghouse for missing, unidentified, and unclaimed persons.

Providing for immunity for mental health providers who are involved in mental hygiene checks

Senator Patricia Rucker of Jefferson County said she voted on the prevailing side (a no vote) and made a motion to bring the bill back up for reconsideration. That motion passed.

Senator Mark Hunt of Kanawha County said the Committee could continue to work on the bill to improve it. The bill was assigned to subcommittee: Senators Tom Takubo of Kanawha County, Chair, Hunt, Jason Barrett of Berkeley County, Vince Deeds of Greenbrier County, and Mike Caputo of Marion County.

Establishing Fentanyl Poisoning Awareness Week in grades 6 through 12

The Committee will report the bill to the full body with the recommendation that is pass.

The instruction must cover overdose awareness, prevention of fentanyl abuse and addiction, awareness of local resources, and health education, including the risks of misuse and abuse.

The bill authorizes the instruction to be provided by entities like educational institutions, community organizations, public health agencies, or mental health professionals. It requires the instruction to begin in the next school year.

Relating to eliminating the certificate of need program for health services

Vice Chair Heather Tully of Nicholas County made the motion for CON repeal.

Opponents contend elimination of the CON process will usher out-of-state medical facilities to enter the state, possibly closing hospitals due to most patients having Medicare, Medicaid, or PEIA coverage — in fact, 75% of patients, according to Committee.

Delegate Ric Griffith of Wayne County reiterated that point, which echoed testimony provided by not only a representative of the state Hospital Association but also voiced by Delegates, especially from rural areas.

Delgate Griffith, a health care provider, also alluded to his district, which includes Wayne County, as opening the state’s 34 border counties to external university hospitals.

Delegate Tully reiterated that House Bill 4909’s goal is to introduce “competition” into the health care equation involving hospitals. She also commented with words to the effect that once a Certificate of Need is granted, it’s literally forever.

A representative of the Health Care Authority noted that she was unaware of a process to undo a CON.

Delegate Tully, echoing Delegate John Hardy of Berkeley County, said CON applications don’t consider an applicant’s “diversion” status, which she said competition might address, as well as competition based on potentially higher pay and benefits for employees.

Delegate David Kelly of Tyler County noted an out-of-state hospital group set up shop in his district and, rather than dismantling services, is actually building a new facility.

The penultimate prompt for the Committee’s action was laid when Delegate Hardy moved to table House Bill 5303, a bill laid over from the Committee’s meeting last week.

HB5305 would establish “neighborhood” hospitals, namely smaller hospitals. As pointed out during the Committee’s February 15 meeting, nothing would prohibit “neighborhood hospitals” from expanding into larger facilities, although CON provisions were applicable.

Delegate Hardy’s motion followed questions of several persons, including a representative of WVU-East.

Delegate Hardy spoke specifically about a situation in Martinsburg involving WVU-East and provided WVU-East’s diversion statistics.

A representative of WVU-East explained staffing enhancements and addressed weather conditions, scheduling, and staff with expertise being tied up with difficult cases.

Delegate Hardy also said he called WVU-East to see how long it would take to receive various medical appointments. In one instance, the earliest available date was early next year.

Delegate Steve Westfall of Jackson County, however, countered that WVU partnered with a hospital in his district and is expanding services, including facility considerations for neighboring Roane County.

A representative of Valley Health in Virginia told the Committee his organization had applied for CONs, including for a hospital in McDowell County. The application for MRI services, however, was rejected.

He said the state Supreme Court ruled health care officials had, in essence, based their decisions on privatized interpretations of statutes.

Following the adoption of Delegate Hardy’s motion to table HB5305, GOP Committee members caucused.

Throughout the Committee discussion, the groundwork was laid for the Committee’s actions, although Delegate Anitra Hamilton of Monongalia County spoke against Delegate Tully’s motion.

The bill goes to the full House.

Delegate Lori Dittman of Braxton County echoed words of opponents, saying while “competition is great,” eliminating the CON process is vital for protecting communities.

Delegate Scott Heckert of Wood County summed up the debate this way: “Opening the gate and letting everyone come in is not the answer.”

Requiring DHS to provide investigative and assessment services

·     “Family assessment response” means a response to selected reports of child abuse and neglect using a family-centered approach that is protection and prevention oriented and that evaluates the strengths and needs of the child’s family, as well as the conditions of the child. The cases shall be staffed by socially necessary service providers or other providers contracted by the Department of Human Services to conduct this assessment.

·     “Investigative assessment response” means a response to reports of child abuse and neglect using a formal information-gathering process to determine whether a child is abused, neglected, or neglected and abused.

Child Protective Services is directed to conduct the performance of an assessment using either a family-assessment response or an investigative-assessment response, casework, or other counseling services to parents, guardians, or other caretakers to help parents, guardians, or other caretakers and the court prevent abuse, neglect or abuse and neglect and to preserve and stabilize family life.

Reports of abuse or neglect require “immediate and thorough assessment” based on use of the family- or investigative-assessment response(s) to ascertain the extent of the abuse or neglect, and the risk of harm to the child, to determine whether protective services should be provided or the action should be filed as a petition.

Other SB 528 components include:

·     Use of a “system to triage calls” regarding the frequency, severity, and overall risk to the child, including “the appropriate maltreatment screening tool” when evaluating and screening reports.

·     If repeated calls have been made about a family or child within the past 30 days, those calls shall be investigated regardless of the results of the screening tool.

·     The Commissioner is required by July 1, 2024, to update the child-welfare data dashboard monthly thereafter to report on systemwide issues, including, but not limited to, system-level performance indicators, intake hotline performance indicators, field-investigation performance indicators, open-case performance indicators, out-of-home placement performance indicators, federally mandated performance indicators, child fatality, and near fatality information. The bill was amended to reflect the number of children who are considered as “non-placement,” including children affected by “temporary lodging,” as well as more directed statistics relating to adoption.

·     Dashboard data is to be more readily accessible to the public, although the Department of Human Services may apply “data suppression” to protect individual identification “as necessary.”

Requiring coverage of home blood pressure-monitoring devices for certain Medicaid recipients

The Bureau of Medical Services is to amend the State Plan to revise the home blood-pressure monitor coverage requirements to include specific requirements for:

·     coverage determination for hypertension;

·     inclusion of a validated self-measured blood pressure device;

·     replacement frequency of a self-measured blood-pressure device;

·     reimbursement for self-measured blood-pressure device and related services; including training patients, transmission of blood-pressure data, interpretation of readings, and costs of delivering co-intervention.

The Committee amended the legislation to clarify the intent of the legislation and individuals for whom its provisions apply, replacement of the blood-pressure cuff to accommodate cuff size, and revised language to clarify Bureau of Medical Services data collection, including striking the reference to “transmission of blood pressure data,” which is not considered integral to the bill, according to Committee Counsel.

Prohibiting certain medical exams on anesthetized patients

The bill prohibits a medical practitioner, student in training in a medical school, intern, resident, graduate student, or an individual participating in a clinical training or resident program from performing a pelvic, prostate, rectal, or breast examination on an anesthetized or unconscious patient unless one of the following conditions is met:

·     The patient, the patient’s guardian, or the patient’s health care representative provides prior written informed consent for the pelvic, prostate, rectal, or breast examination.

·     The performance of a pelvic, prostate, rectal, or breast examination is within the scope of care ordered for the surgical procedure or a diagnostic examination to be performed on the patient, and the patient, patient’s guardian, or patient’s health care representative has given prior written informed consent.

·     A medical emergency exists, and the pelvic, prostate, rectal, or breast examination is immediately necessary for diagnostic examination or treatment of the patient. The examination must be documented in all necessary medical charting, and the patient, patient’s guardian, or patient’s health care representative must be informed of the examination in writing with explanation of necessity.

·     A court has ordered the performance of the pelvic, prostate, rectal, or breast examination for the purposes of the collection of evidence.

The Committee amended the bill so a patient’s guardian may provide consent.

The bill establishes felonies for persons who are convicted of violating the statute, including a 10- to 25-year jail sentence and/or a fine of $1,000 to $10,000.

Funds are to be deposited into the West Virginia Foundation for Rape Information and Services.

Those guilty also are subject to license suspension or “other authorization to practice medicine and surgery for no less than five years, including limiting the practice of that person to, or by the exclusion of, one or more areas of practice, including limitations on practice privileges.”

Relating to Bureau for Medical Services’ medically supervised weight-loss program

Embedded statutory definitions define “anti-obesity medication” as a class of FDA-approved medication used to treat obesity.

Medicaid recipients include persons who apply for and receive Medicaid assistance subject to these conditions:

The recipient must have a BMI of at least 35 kg/m2 or BMI of at least 30 kg/m2 and one of the following conditions related to obesity:

1.   hypertension;

2.  metabolic-associated fatty-liver disease;

3.  obstructive sleep apnea;

4.  coronary heart disease; or

5.   type 2 diabetes.

To be approved for the program, the recipient is required to enroll in and actively participate in a behavior-modification program approved by the Bureau for Medical Services.Additionally, the recipient must achieve a minimum weight loss of 5% of baseline bodyweight by the end of the seventh month to continue anti-obesity therapy.

The Bureau of Medical Services is directed to conduct regular assessments regarding “spending associated with the program and health outcomes associated with the program,” including recipients’ health status before beginning the anti-obesity program and throughout the course of treatment.

As amended by the Committee, collected data is to reflect “cost savings” attributable to the program in addition to health outcomes associated with the program and “related variables.”

The Bureau of Medical Services is to provide reports to the Legislative Oversight Commission on Health and Human Resources Accountability.

Requiring annual analysis of contracts from DHS and Bureau for Social Services

Amended language states: “The report shall include a rate study, analysis of workforce capacity, and the impact on children of the current reimbursement levels for child-placement agencies. The department shall include in the report an explanation with justification on whether the department plans to increase child-placement agency rates pursuant to study findings in the subsequent fiscal year and how it proposes to accomplish this goal.”

Existing law, §49-2-111a, relates to performance-based contracting for child placing agencies.

Relating to the enhanced recovery of oil and natural gas in horizontal wells

HB5268 authorization is already in place for vertical wells, but the bill seeks to make it clear that it also applies to horizontal wells. The bill also aims to confirm that the Secretary of the Department of Environmental Protection has exclusive authority to regulate and enhance recovery from horizontal wells.

Expanding employment and training requirements necessary for SNAP benefits

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The bill clarifies the Department of Human Services (DHS) duties when there is a lack of funding or inability to provide employment and training.

The bill identifies when assignments to the employment and training program may not be suspended.

SB562 bill allows the Legislative Oversight Committee on Health and Human Resources Accountability (LOCHHRA) to evaluate the current voluntary employment and training program requirements necessary to receive SNAP benefits, requires DHS to measure and report program on outcomes, and empowers LOCHHRA to propose corrective legislation.

SB562 modifies the age range for SNAP benefits, moving from the current ages 18 to 49 to ages18 to 59 for able-bodied persons to participate in employment.

As explained by Counsel, the revised Senate Finance Committee Substitute includes language that conforms SB562 provisions to changes in federal laws relating to SNAP — a question posed by Senator Ben Queen of Harrison County.

Senator Robert H. Plymale of Wayne County wondered whether bill provisions could keep SNAP participants from receiving services from food banks. A representative of the Department of Human Services said that was possible.

The measure goes to the full Senate.

Assisted Reproduction Act

The Committee will consider the bill at a future date.

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