From the Well | February 23, 2024

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86th West Virginia Legislature

State Capitol

February 23, 2024

West Virginia News Headlines

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CONTINUING EDUCATION: The House Committee on Government Organization approved House Bill 5551, which relates to continuing education concerning domestic violence.

GENDER DYSPHORIA: The House Health Committee passed House Bill 5297, which affects treatment for severe gender dysphoria.

MEDICAL EXAM STANDARDS: The House Judiciary Committee passed a bill that sets standards for performing certain medical examinations on an anesthetized or unconscious patient.

MEDICAID COSTS: The House Finance Committee adopted House Bill 5685, which requires the state Bureau of Medicine to provide lawmakers information about Medicaid proposals that have a $3 million or more impact on costs.

TOBACCO SALES: The Senate Judiciary Committee adopted legislation that prohibits the sale of tobacco products to persons younger than 21.

PROMPT PAYMENT: The House Finance Committee adopted House Bill 5639, which is designed to ensure state agencies promptly pay legitimate, uncontested invoices.

PROPERTY TAXATION: The Senate Judiciary Committee passed a bill that establishes the tax class for real property held in a trust that is occupied as a residence by an immediate family member or former spouse of the owner.

Relating to establishing a foster parent information system

System components are to be implemented by January 1, 2025, with the project completed by January 1, 2026.

As outlined in HB4975, the informational system is to:

·     Facilitate communications with those individuals involved the child welfare system, including, but not limited to:

1.   Foster parent requests and responses to requests to staff of the Bureau for Social Services and their contractual designees;

2.  Updates regarding foster-child movement, visitation, and trave (see above)l;

3.  Scheduled court hearings, guardian ad litem, and multidisciplinary team hearings and meetings; and other communications that may improve care for the foster child among designated parties with legal responsibilities to care for the foster child; and

4.  Provide health records for the foster child to the foster parent by connecting with existing health care systems.

·     Have the capacity to archive communications for the purpose of running reports on responsiveness by actors in the child welfare system; and

·     Be created to prevent the input of redundant information.

The legislation directs DHS to provide analysis and evaluate a child protective worker’s responsiveness to the information placed in the system, which shall be shared with the Foster Care Ombudsman and the Legislative Oversight Commission on Health and Human Resources Accountability.

The system is to be developed to “ensure that permission access to utilize the system about a foster child is granted to only those parties with legal responsibilities to care for and support the foster child.”

Relating to continuing education concerning domestic violence

HB5551 requires licensed social workers, psychologists, and professional counselors to complete a one-time continuing education course on domestic violence within two years of becoming licensed. The bill aims to educate professionals on domestic violence so they can better assist clients who deal with domestic abuse.

Removing pubertal modulating and hormonal therapy for severe gender dysphoria from prohibited practices

HB5297 removes an exception that allowed physicians to provide pubertal and hormonal therapy to patients with severe gender dysphoria. The exception required physicians to follow certain requirements to provide this treatment.

Delegate Mike Pushkin of Kanawha County proposed an amendment to allow those currently receiving treatment to continue but end new treatments after July 1, 2024. The amendment failed. The Committee then voted to report the bill to the full Legislature with a recommendation to pass it.

Prohibiting certain medical exams on anesthetized patients

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

2.  The performance of a pelvic, rectal, or breast examination is within the scope of care ordered for the surgical procedure or 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.

3.  A medical emergency exists and the pelvic, 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.

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

5.   Those convicted of violating the statute would be guilty of a felony and imprisoned in a state correctional facility for 10 to 25 years, or fined not less than $1,000 nor more than $10,000 and imprisoned in a state correctional facility for 10 to 25 years.

6.  Those convicted of violating the law would be subject to suspension of his or her license 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.

Bill provisions are effective upon passage.

Relating to Medicaid Cost Containment

The bill, as the Committee learned in discussion, including comments by Delegate Daniel Linville of Cabell County, is aimed at getting elected policymakers to assume greater agency oversight, especially to ensure legislators have information about programs that grow without their input.

Although House Finance members voiced support for the measure, three sticking points emerged:

1.     Is the Legislature’s current rule-making process equipped to handle the charge?

2.     How is the $3 million calculated? Is a percentage a better benchmark?

3.     Is the Bureau of Medicine equipped to meet HB5685 mandates?

Several members of House Finance who serve on the Legislature’s Rule-making Review Committee noted the Committee currently does not operate in an oversight capacity, saying the Legislature’s interim Commission on Health and Human Resources Accountability might best play that role.

Cindy Boone, who directs the Bureau of Medicine, noted many of the bill’s informational requirements can be met either through existing data collection or by contracting vendors.

Ms. Boone said, given limited knowledge of the Legislature’s rulemaking process, she was uncertain whether decisions could be made on a timely basis and ensure that waiver programs are operational.

Members noted the oversight role, which they supported, would be best handled through emergency rulemaking. The Committee adopting an amendment to that effect.

HB5685 sponsor Delegate Matthew Rohrbaugh of Cabell County acknowledged the legislation will face revision on the House floor to better define both its purpose and how best to achieve results.

Prohibiting sale of tobacco products to individuals younger than 21 years of age

Specifically, the bill means no “person, firm, corporation, or business entity may sell, give, or furnish, or cause to be sold, given, or furnished, to any person younger than 21 years of age” any pipe, cigarette paper or any other paper prepared, manufactured, or made for the purpose of smoking any tobacco or tobacco product; any cigar, cigarette, snuff, chewing tobacco or tobacco product, in any form; or any electronic smoking device.”

These are among the SB717 provisions:

·     Defines “electronic smoking device” as “any device that can be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including but not limited to any e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking device includes any component part, or accessory of such device, whether or not sold separately, and includes any substance intended to be aerosolized or vaporized during the use of the device, whether or not the substance contains nicotine. Electronic smoking device does not include drugs, devices, or combination products approved by the United States Food, Drug, and Cosmetic Act.”

·     Defines “Tobacco product” and “tobacco-derived product,’” the latter of which would also include electronic cigarettes or similar devices, alternative nicotine products and vapor products electronic smoking devices, any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or any component part, or accessory of a tobacco product or electronic smoking device, whether or not any of these contain tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, and pipes. “Tobacco product” or “tobacco-derived product” does not include any product drugs, devices, or combination products that is are regulated by the United States Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic Act.

·     Establishes that firms or corporations which violate the statute and/or any individual would be guilty of a misdemeanor and, upon conviction thereof, fined $50 for the first offense. Subsequent violations at the same location or operating unit, the firm, corporation or individual increase for up to $5,000 if the subsequent offense occurs within five years of the first conviction.

·     Provides a misdemeanor fine for individuals who knowingly and intentionally sell, give, or furnish (or causes to sell, give or furnish) any cigar, cigarette, snuff, chewing tobacco, tobacco product, in any form, ls, gives or furnishes or causes to be sold, given or furnished to any person younger than 21 years of $100-$500.

·     Allows employers who discover that his or her employee has sold or furnished tobacco products to minors may dismiss such employee for cause. Any such discharge shall be considered as “gross misconduct” for the purposes of determining the discharged employee’s eligibility for unemployment benefits if the employer has provided the employee with prior written notice in the workplace that such act or acts may result in their termination from employment.

The bill allows persons younger than the age of 21 to participate in the inspection of locations where tobacco products or tobacco-derived products are sold or distributed.

According to Committee Counsel, the use of “electronic smoking device” apparently would include “devices” used for products, including CBD compounds.

Prompt Payment Act of 2024

As stated in the bill, “after July 1, 2024, a check, state warrant, purchasing card transaction, or electronic payment shall be issued in payment thereof within 45 days after a legitimate uncontested invoice is received by the state agency receiving the services or commodities. Any check, state warrant, purchasing card transaction, or electronic payment issued after the 45 days shall include 3% interest, compounded weekly at the beginning of each week and calculated from the 46th day after the invoice was received by the state agency until the date on which the check or warrant is mailed to the vendor, the electronic payment is issued and cleared through the bank, or the purchasing card transaction is initiated and cleared by the bank. For the purposes of computation under this section, the week shall end on Saturday and start on Sunday of a given week.”

The bill provides that registered and qualified vendors shall be entitled to prompt payment upon presentation of a legitimate, uncontested invoice to a state agency.

Additionally, HB5639 includes a 3% interest penalty, which agencies could be charged if not paying invoices promptly as established in the legislation.

State Auditor J.B. McCuskey told House Finance that the Oasis fiscal software the Auditor’s Office uses – and is used in various state agencies – makes precise determination of the date an invoice is considered received by a state agency. That information, which is digital and accessible by agencies, makes prompt payment of invoices quicker and, he says, more accurately.

Additionally, McCuskey said the Oasis approach (as well as the proposed legislation) will aid agencies in paying invoices received in one fiscal year without the invoice requiring payment in the ensuing fiscal year – a common situation, he said. In fact, he said deferred payments of invoices in alternating fiscal years makes it difficult to determine the state’s fiscal condition.

HB5639 requires state agencies to explain and calculate interest on the payment claim at the time it is submitted to the State Auditor.

McCuskey characterized the legislation as dealing with “dalliance” between receipt of a bill and bureaucratic lag in paying invoice. That prompts calls to the Auditor’s Office with agencies often unable to secure original invoices.

Updating definitions for assessment of real property

“Immediate family member” is defined to as a “spouse, child, sibling, parent, grandparent, or grandchild. This includes stepparents, stepchildren, stepsiblings, sons-in-law, daughters-in-law, fathers-in-law, mothers-in-law, brothers-in-law, sisters-in-law, and adoptive relationships.”

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