From the Well | February 22, 2024

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86th West Virginia Legislature

State Capitol

February 22, 2024

West Virginia News Headlines

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APPEALS PROCESS: The Senate Government Organization Committee adopted a bill that seeks to provide uniformity in the tax appeals process, including standard appeals procedures.

NONOPIOID DRUGS: The House Health and Human Resources Committee passed legislation that relates to requiring insurance coverage for nonopioid drugs for the treatment of pain in patients with substance-use disorder.

ABUSE AND NEGLECT: The House Judiciary Committee adopted House Bill 5062, which makes direct reference to guardian ad litems having authorization to request a court-appointed Special Advocate (CASA) to assist in cases involving child neglect or abuse.

FOSTER CHILDREN: The House Judiciary Committee adopted House Bill 5572, which prohibits using cameras in the bedrooms and bathrooms of foster homes.

CHILD PLACEMENT: The House Judiciary Committee adopted a bill that adds “former foster parents” to the definition of “fictive kin” in relation to child placement.

CANDIDATE APPEALS: The House Judiciary Committee passed legislation to give individuals seeking to run for public office a 10-day right to appeal to the Supreme Court of Appeals the decisions of the Secretary of State not to verify the potential candidates’ certificates of announcements.

RESIDENCY REQUIREMENT: The House Judiciary Committee approved legislation with an amendment that requires a one-year residency in the district for candidates for the U.S. Congress.

ORAL HEALTH: The House Health and Human Resources Committee passed House Bill 4956, which requires health benefit plans offered by PEIA, Medicaid, and other West Virginia insurers to provide coverage for oral health procedures necessary for cancer treatment.

MENTAL HYGIENE: The Senate Judiciary Committee reconsidered Senate Bill 442 and changed it to remove liability for mental health professionals providing services in mental-hygiene cases involving possible involuntary hospitalization.

PTSD: The House Judiciary Committee passed a bill to require the state Insurance Commissioner to audit claims related to post traumatic-stress syndrome among first responders.

TRESPASSING FINES: House Bill 5130, adopted by the House Judiciary Committee, increases fines for criminal trespassing to $100 to $500 per incident.

SEXUAL CONTACT: The Senate Judiciary Committee passed Committee Substitute for Senate Bill 190 to modify the definition of sexual contact and remove the element of the parties not being married to each other from the definition.

FAKE IMAGES: The House Judiciary Committee adopted House Bill 5516, which prohibits the use of deep-fake images for the criminal invasion of privacy or the unlawful depiction of nude or partially nude minors or minors engaged in sexually explicit conduct.

ELECTION RULES: The House Judiciary Committee approved House Bill 4963, which relates to prohibiting the use of deep-fake technology to influence an election.

ONLINE CHARITY RAFFLES: The Senate Judiciary Committee passed a strike-and-insert amendment for Committee Substitute for Senate Bill 751, creating a new article to allow charitable and public-service organizations to raise funds with online raffles.

SURROGACY: The Senate Judiciary Committee passed legislation to make commercial surrogate brokering and receiving compensation for it a misdemeanor.

PARENTAL RIGHTS: The House Judiciary Committee passed legislation to create a new article entitled the Parents’ Bill of Rights.

FOOD LABELING: The House Health and Human Resources Committee passed a Committee Substitute for House Bill 5349 to require accurate and non-deceptive labeling for plant-based meat, poultry, or similar products.

Allowing County Commissions to determine whether to support, modify, or oppose fire-service fees proposals that county Fire Boards recommend

The measure would amend existing law by allowing County Commissions to determine whether to support, modify, or oppose fire-service fee proposals that county Fire Boards recommend.

The Committee said the legislation would allow elected local officials to review proposals recommended by Fire Boards, the latter comprised of non-elected officials.

Clarifying filing requirements and deadlines in property tax cases

According to Committee Counsel, the bill conforms with 2021 legislation that was effective for the 2022 tax year with the first round of appeals to occur.

These are among the bill’s provisions:

·     The Assessor, if failing to mail the notices of changes in taxation rates by January 15, the most recent assessment year values shall remain unchanged.

·     A taxpayer’s request of the Assessor’s Office may be in writing, in person, or over the phone.

·     The Assessor’s notice is to be made by first-class U.S. postage mailed to the address of the person assessed or the person controlling the property for payment of tax on the item or items in the previous year.

·     Taxpayers who did not receive a notice of increased assessment under §11-3-2a, but who believe their property is valued too high or is incorrectly valued, have a January 31 deadline for the property tax year in question.

·     Taxpayers whose property values have not changed from the most recent assessment year are prohibited from filing a reconsideration request pursuant or from making verbal complaints to the Assessor regarding valuation.

·     SB858 establishes an alternate means of appeal, allowing a taxpayer to file a petition for appeal to the Office of Tax Appeals by March 31. The appeal must “comport” with statutory language.

·     Failure to make a request for reconsideration bars the Office of Tax Appeals’ jurisdiction to hear any such property tax appeal case. The provision is to clarify the Office of Tax Appeals’ property tax jurisdiction on or after July 1, 2024. Further, it is clarified that the Office of Tax Appeals has property tax jurisdiction prior to the enactment of this subsection subject to the deadline in subsection (a) of this section.

The standard of proof that a taxpayer must meet at all levels of review and appeal under this section shall be a preponderance-of-evidence standard.

Counsel said the bill’s provisions also apply to business and personal property but not real property.

Relating to requiring insurance coverage  for a nonopioid drug for the treatment of pain for patients with substance-use disorder

The bill will be reported to the full body with the recommendation that it passes.

The bill requires that commercial insurance providers, Medicaid, and PEIA provide coverage for medically appropriate non-opioid drugs to treat acute pain in patients diagnosed with substance-use disorder.

Relating to permit a guardian ad litem to request the assistance of a court-appointed special advocate

As explained by Counsel and lead sponsor Adam Burkhammer of Lewis County, the legislation, in short form, makes direct reference to guardian ad litems having authorization to request a court-appointed Special Advocate to assist in cases involving child neglect or abuse.

While Delegate Burkhammer said the practice is common, the code revision will make specific references to CASA appointments.

The Committee received information regarding CASAs, including the fact that 25 counties have a CASA program, although the program has regional placement components.

While Delegate Burkhammer said CASAs are “lay citizens,” they often have greater opportunities to spend more one-on-one time with children, and CASAs must receive specific training and participate in in-service training.

A guardian ad litem is an attorney appointed by the court to investigate a case and report its findings and recommendations to the court. The investigation, report, and recommendations are based on the best interests of the child. The guardian ad litem is a lawyer for the child and works in the best interests of the child. Every guardian ad litem has had education, training, and experience regarding the needs of children.

A guardian ad litem also may be appointed to represent anyone who is under 18, an incompetent person (for example, someone with a mental disability), or someone who is currently in jail. However, that is not the focus of this article.

Committee testimony indicated that attorneys often welcome appointments of CASAs.

Prohibiting cameras and recording devices in bedrooms and bathrooms of foster children

HB5572 was amended based on Committee discussions, questions of Counsel and sponsors, meaning the legislation applies only if cameras were to be used for “surveillance” purposes.

According to lead sponsor Delegate Adam Burkhammer of Lewis County, the issue arose in terms of placing foster children with caregivers noting, in some instances, the use of cameras.

Although there was support for the legislation, with HB5572 being adopted by voice vote, questions arose concerning foster care children having tablets or I-phones equipped with cameras.

Delegates raised other scenarios as well, including whether a foster child is producing YouTube videos.

HB5572 allows the use of baby monitors and the use of “equipment used to monitor the health of a child receiving medical care.” Equipment shall not include cameras unless necessary to ensure the health and safety of the child.

Relating to defining term fictive kin

Existing code, which was amended for clarification and cleanup, defines “fictive kin” as including an adult of at least 21 years of age who is not a relative of the child as defined but who has an established, substantial relationship with the child, including but not limited to teachers, coaches, ministers, parents, or family members of the child’s friends.

Give a 10-day right to appeal to the Supreme Court of Appeals a Secretary of State decision to not certify a candidacy

The bill had been reported out of subcommittee, and there was no further explanation or discussion.

Establishing residency requirements for candidates seeking nomination and election to United States Congress

Counsel said the U.S. Constitution requires a representative to be 25 years old, a citizen of the United States, and, when elected, a resident of that state. In a 5-4 decision, the U.S. Supreme Court said states can enact additional requirements when the Constitution is silent.

Amendments were adopted that changed the term “elector” to “voter” and removed the severability clause.

Several states currently are trying to add the residency requirement.

Counsel found that as of three years ago, 17 of the 435 members of the House of Representatives did not live in their districts.

Creating the Oral Health and Cancer Rights Act

The bill will be reported to the floor with the recommendation it passes.

The bill defines the scope of covered procedures to include evaluations, treatments, restorations, medical devices, and prostheses needed to obtain or restore function related to eating, breathing, speech, etc., that result from cancer surgery, chemotherapy, radiation, or other treatments.

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

The bill would remove liability for mental health professionals providing services in mental hygiene cases involving possible involuntary hospitalization.

Language was added that a medical examiner will not be liable unless he or she acted with negligence by clear and convincing evidence.

Requiring the West Virginia Office of the Insurance Commissioner to audit certain PEIA claims

The Committee Substitute requires that reporting must include data about determinations and claims filed.

Relating to criminal trespass

Bill provisions “(are not to be) construed to prevent lawful assembly and petition for the redress of grievances, during any dispute, including, but not limited to, activities protected by the West Virginia Constitution or the United States Constitution or any statute of this state or the United States.”

Modifying definition of sexual contact

Monongalia County Prosecuting Attorney Gabrielle Mucciola told the Committee that sexual abuse in the first degree is where the marital exemption is noted. She said it requires forcible compulsion, which she described as physical force that overcomes reasonable resistance.

“The marital examption is a barrier to prosecution because part of abuse is often sexual abuse,” said Prosecutor Mucciola. She said the husband could commit sexual assault or sexual abuse, and the legal system can’t do anything because they are married.

Senator Patricia Rucker of Jefferson County offered an amendment to define consent by adding what factors would not constitute consent, such as not disclosing a sexually transmitted disease.

Senator Ryan Weld of Brooke County opposed the amendment, saying, “Marriage isn’t about implied consent. It’s about mutual consent.”

Senator Weld added that the amendment was a step in the wrong direction and undermined the concept that “no means no.” In a tied roll-call vote of 8-8, the amendment was rejected.

Senator Mike Azinger of Wood County offered an amendment to require the sexual abuse or contact between a husband and wife to be witnessed by two people.

Senator Weld objected, saying the proposal makes second-class citizens of wives and telling them, “Your word doesn’t count. Your word doesn’t matter.”

Senator Azinger withdrew his amendment after Senator Weld pointed out that in the vast majority of cases the victims are women.

Before the final vote, Senator Weld spoke in favor of the bill, saying, “It is a crime to sexually abuse your spouse. That is the question before us.”

Senator Jay Taylor of Taylor County added, “I couldn’t tell my wife that I was going to vote against this. I have to vote yes because I respect my wife.”

Roll Call Vote:

No: Senators Azinger, Hunt, Martin, Rucker

Yes: Senators Barrett, Caputo, Deeds, Hamilton, Maynard, Stover, Stuart, Swope, Takubo, Taylor, Weld, Woelfel, Chairman Trump

Relating to criminalizing the use of deep fakes

The bill defines “deep fake” as meaning “a visual depiction of an individual that did not occur in reality and the production of which was substantially dependent upon technical means, including artificial intelligence and Photoshop software, rather than the ability of another person to physically impersonate the other person.”

Additionally, the measure defines deep fake as meaning a photograph, motion picture, digital image/digital recording as well as any other mechanical or electronic recording process or device that can preserve, for later viewing, a visual image of a person that includes, but is not limited to, computers, cellphones, personal digital assistance, and other digital storage or transmitting devices.”

Current law defines “sexually explicit conduct.”

Prohibiting the use of deep-fake technology to influence an election

The bill defines “deep fake” to mean any video recording, motion-picture film, sound recording, electronic image, or photograph, or any technological representation of speech or conduct substantially derivative thereof:

·     That is so realistic that a reasonable person would believe it depicts speech or conduct of an individual who did not in fact engage in such speech or conduct; and

·     The production of which was substantially dependent upon technical means rather than the ability of another individual to physically or verbally impersonate such an individual.

“Depicted individual” means an individual in a deep fake who appears to be engaging in speech or conduct in which the individual did not engage.

The bill has a proviso stating, “That a media outlet, including but not limited to, a website, social media platform, regularly published newspaper, magazine, or other periodical, including electronic or Internet publication of the same, a radio or television station, including a cable or satellite television operator, programmer, or producer, or any streaming service, is not in violation of this section if the entity’s only role was to distribute a political advertisement prohibited….”

Causes of action for injunctive relief “may be maintained against any person who is reasonably believed to be about to violate or who is in the course of violating the statute by the Attorney General; a county prosecutor; the depicted individual or a candidate for nomination or election to a public office who is “injured or likely to be injured by dissemination.”

Delegate Joey Garcia of Marion County proposed the amendment.

Most of the Committee discussion related to a bill section that would have criminalized persons who affect an election through use of deep-fake technology.

Delegate Brandon Steele of Raleigh County mentioned an image forwarded to him that could have met that bill criteria.

Steele concluded “that’s part of the business we’re in.”

Delegate Daniel Linville of Cabell County, a co-sponsor of the original legislation, pointed out that 7,000 state legislators were part of an AI initiative that a college professor began in 2019.

The results were shared with legislators last year.

The original bill would punish persons who said they were “constituents” of a Delegate, using “deep fake” or other means to convince the legislator to act a certain way in regard to public policy.

Delegate Steele repeatedly said those type communications are part and parcel of a public official’s work, including e-mails from other states, parodies, and satire with or without deep-fake imprints.

Creating online charitable raffles

Annual licenses for West Virginia residents will be available for charitable organizations that have been in existence for at least two years. The annual license is $500.

Geo-location technology is required to assure that online raffles are available only in West Virginia.

Because the online raffles are for charity, there are limits on compensation of employees and on expenses. Criminal penalties are set forth for various aspects of the application process or how the online raffles are conducted.

Assisted Reproduction Act

After adding an amendment to make commercial surrogate brokering and receiving compensation for it a misdemeanor, the Committee passed the bill.

Creating the Parents’ Bill of Rights

The bill generated lengthy discussion on how parents would exercise their right to direct the education and care of their children and how that would intersect with the public school system. Counsel said the bill is codifying a pre-existing fundamental right.

“Litigation is definitely part of this bill,” said Delegate Evan Hansen of Monongalia County.

Jordan Carpenter, representing the Alliance Defending Freedom, described his legal organization as committed to protecting parental rights, freedom of speech, and other rights.

“We litigate cases where parents’ rights have been violated by government action,” Mr. Carpenter said.

Delegate Hansen asked about litigating cases where mandatory instruction includes sexual topics and other questions about the organization. Chairman Tom Fast reprimanded Delegate Hansen, who was told him not to ask questions about the background of the organization.

Asked about the scope of rights for the parents, Mr. Carpenter responded that they have a right to subject matter for a “moral and religious upbringing” for their children. He told the Committee that 17 states have passed the law.

West Virginia Truth in Food Labeling Act

The West Virginia Truth in Food Labeling Act introduces definitions for terms like “analog product” and “cell-cultured product” to clarify the characteristics and origins of alternative food items. It allows food producers to label these alternative products either before or after the name of the product on packaging. The bill also provides rulemaking authority to the Department of Agriculture for enforcement.

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