From the Well | February 26, 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 26, 2024

West Virginia News Headlines

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FOREST MANAGEMENT: The Senate Finance Committee passed legislation that establishes a forest-management program to regulate the sale and purchase of carbon credits.

MEDICAL BOARDS: The House Committee on Government Organization passed the Committee Substitute for Senate Bill 714, which transfers the duties and licensing from the West Virginia Board of Osteopathic Medicine to the West Virginia Board of Medicine.

PHYSICIAN DRIVING: The Senate Transportation and Infrastructure Committee passed a bill that exempts allopathic and osteopathic physicians from speed restrictions when traveling in response to an emergency call if their vehicle displays an approved emblem.

DRUG COVERAGE: The House Finance Committee adopted House Bill 5379, which involves prescription drug coverage.

PARTY AFFILIATION: The House Judiciary Committee passed a bill that would require any person who is selected to fill a vacant political office to be affiliated with the same party as the person who vacated the office for at least 60 days.

BALLOT TRACKING: The House Judiciary Committee passed legislation that would codify and mandate an electronic absentee-by-mail-ballot tracking system. The bill also adds instructions for curing a rejected ballot.

TOBACCO SALES: The Senate Judiciary Committee passed legislation authorizing the delivery and sales of tobacco within state boundaries by retail sellers and remote delivery services.

DISCRIMINATION: The Senate Judiciary Committee passed the West Virginia Women’s Bill of Rights, which defines sex discrimination and sex equality and says sex discrimination refers only to males and females.

COURT CLARIFICATION: The House Judiciary Committee passed legislation that clarifies when a mentally incapacitated victim may not be required to testify in open court.

INSURANCE: The Senate Finance Committee originated a bill that would place a moratorium on the Risk and Insurance Management Council to take on new insurance for state entities until July 2025.

SHERIFF’S FEES: The House Committee on Government Organization passed Senate Bill 240, which increases the maximum fees that county Sheriffs in West Virginia can charge for various services.

FEE INCREASE: The House Judiciary Committee passed legislation to increase the fee to the fiduciary commissioner from $300 to $500.

GAMING: The House Judiciary Committee passed House Bill 5668, which creates the Responsible Gaming and Research Act.

INFRASTRUCTURE: The House Finance Commitee adopted House Bill 4772, which creates a credit against the severance tax to encourage private companies to make infrastructure improvements to highways, roads, and bridges in the state.

CONSUMER DATA: The House Finance Committee adopted House Bill 5338, which would establish the Consumer Data Protection Act.

Requiring automatic enrollment of substance abuse disorder population into managed care

The bill, if passed, aims to balance the interests of current and future landowners by limiting long-term restrictions on property development for carbon sequestration purposes. It establishes definitions, registration requirements, and an excise tax for carbon offset agreements. It also restricts agreements longer than 20 years unless consideration is renegotiated.

During the discussion, the Committee discussed questions the volume of existing carbon tax credits in the state, how carbon offset agreements affect timber harvesting, and whether agreements could restrict mining. It was noted that while some agreements limit forestry, mining has continued in at least one case. Members also raised concerns about out-of-state carbon-capture companies purchasing land in coal-producing areas.

The Committee adopted a motion to report the bill with a recommendation to pass it.

Authorizing Division of Forestry to administer certain exchange program

The bill aims to authorize the Division of Forestry to administer the program and operate a carbon-credit exchange.

Key points, according to Counsel, include setting up the exchange with a one-time $3.5 million expenditure, potentially contracting $500,000 per year for operations, listing existing carbon credits in the database, and changing the bill’s short title to better reflect regulating a forest-management program rather than a carbon-exchange program.

The Committee voted to report the strike-and-insert amended bill to the full Senate with a recommendation to pass it.

Transferring duties and licensing from Board of Osteopathic Medicine to Board of Medicine

The Committee will report the bill to the floor and recommend passage.

SB714 combines the West Virginia Board of Medicine and the Board of Osteopathic Medicine into a single new medical board. It increases board membership from 15 to 21 members. The bill also establishes regulations for the profession of genetic counseling.

The bill was amended in Committee to clarify that the new combined board must have at least four allopathic physician members and at least four osteopathic physician members, with the remaining physician positions appointed by the Governor.

The new board would assume responsibility for licensing and regulating allopathic physicians, osteopathic physicians, physician assistants, podiatrists, and genetic counselors.

Exempting certain physicians from specified traffic laws when responding to emergencies

The Committee will report the bill to the floor with the recommendation that it passed.

The SB377 would not relieve vehicle operators from the duty to drive with regard for safety.

The bill tasks the West Virginia Board of Medicine and the West Virginia Board of Osteopathic Medicine with proposing rules for the emblem’s use and penalties for misuse.

Relating to financial assistance available for a prescription drug

Based on HB5379 provisions, “An insurer, pharmacy benefits manager, or third-party administrator may not directly or indirectly set, alter, implement, or condition the terms of health plan coverage, including the benefit design, based in part or entirely on information about the availability or amount of financial or product assistance available for a prescription drugs.”

Relating to changing political parties less than 60 days prior to filing for office

Counsel explained said the short title was misleading and needed to be changed because the Committee Substitute applies only to filling appointments for vacancies in several elected offices, including Congress, Governor, State Senate, House of Delegates, Sheriff, Assessor, and Prosecuting Attorney.

An amendment was offered to change 60 days to two years. A competing amendment was proposed to change 60 days to one year. There was lengthy discussion on whether one year or two years was too long and whether a person not affiliated with any party would be subject to the law.

The Committee adopted the one-year amendment.

Delegate Joey Garcia of Marion County proposed an amendment to strike the words “vacancy occurred” and replace with “when that official who is vacating office was elected.” He further said the person appointed to the vacated position must be the same political affiliation the vacating official was when elected to office. That would apply in cases where the vacating official changed parties after being elected.

After several members of the Committee spoke in support, saying that it reflects what people voted for, the amendment passed unanimously.

Relating to absentee voting

The Committee adopted an amendment to change the word “elector” used throughout the bill to “voter.”

Providing safeguards for online sales of tobacco products

Age verification is required and is confirmed through a checkbox for online delivery sales. The bill expands the reach beyond cigarettes and changes the reference to cigarettes and other products to “tobacco products.” The Committee Substitute changes references to substance throughout the bill to solution.

Senator Mike Stuart of Kanawha County asked whether anything could be delivered as a result of the bill to get consumers high. His question led to a lengthy discussion on how to word an amendment regarding what should and should not be legal for delivery.

In the meantime, Bridget Lambert, President of West Virginia Retailers Association, said the bill addresses the stringent requirements for deliveries that include a monthly report stating brands sold, full names, copies of invoices, and other information. The bill requires retailers to retain those records but removes the reporting on the 10th of each month. She described the reporting as onerous and said one pack of cigarettes must be reported separately to a state agency if it is included in a delivery of groceries.

Senator Charles Trump of Morgan County noted, “I was unaware that the law permits delivery of tobacco products.”

He then offered an amendment that would remove the inclusion of electronic smoking devices, which include vape pens, in the definition of tobacco products and added a second amendment to prohibit the delivery of Delta 8, Delta 10, and Kratom products.

“This is like double-tying your shoelaces. It doesn’t hurt anything to have it in here,” Senator Trump said in reference to prohibiting the Delta 8, 10, and Kratom products.

The amendment to prohibit the delivery of electronic smoking devices failed on a roll-call vote. The amendment to prohibit delivery of Delta 8, Delta 10, and Kratom passed on a voice vote.

Creating WV Women’s Bill of Rights

Senator Mike Caputo of Marion County asked whether thr bill would prohibit municipalities from adopting sexual discrimination ordinances. Counsel replied that construing sex-specific benefits or services, sex discrimination, or sex equality would be based on only two sexes at birth, male or female.

A representative of the Independent Women’s Law Center, an organization whose objective is equal opportunity, individual liberty, and the continued legal relevance of biological sex, said her organization strongly supports this legislation.

She emphasized, “It creates no new rights.”

She added that the bill confirms that woman or girl means biological female and that it protects women’s spaces. It also ensures that data collection is on the basis of biological sex.

Relating to impaired driving not eligible for deferred adjudication

Relating to testimony of cognitively delayed persons in open court and criminal penalties for assault of cognitively delayed persons

The bill provides judicial discretion to determine the appropriateness of a mentally capacitated victim to testify.

Counsel said the bill “provides guardrails” for making accommodations for a mentally incapacitated victim while also guarding the constitutional rights of a defendant who has not yet been convicted.

“It provides allowance for a sensitive population,” Counsel said.

Clarify law regarding the crime of witness tampering

Relating to certain insurance coverage provided by BRIM

The Board of Risk and Insurance Management (BRIM) primarily provides property and liability insurance to state agencies and schools. However, it also can provide coverage to certain other political subdivisions and nonprofit organizations listed in the code.

The bill would prohibit BRIM from taking on any new insurance for optional entities until 2025, but it would allow it to extend existing coverage or non-renewal policies with 60 days’ notice.

The Committee voted to report the bill to the full Senate and recommended passage.

Increasing fees charged by sheriff

The Committee will report the bill to the floor with the recommendation to pass it.

SB240 raises the fee cap from $25 to $30 and increases the portion of collected fees that must be deposited into the West Virginia Deputy Sheriff Retirement Fund from $2 to $5. The bill aims to help fund sheriff’s offices and the retirement program for deputy sheriffs.

Relating to changing the maximum amount a County Clerk can charge to settle an estate and removing reference

to Fiduciary Commissioner

Counsel clarified that the short title was somewhat misleading because the fee is charged and received by the fiduciary commissioner, not the County Clerk.

Counsel said smaller estates of $200,000 or less or those that have only one beneficiary do not have to be referred to a fiduciary commissioner. The County Commission also can set a fee schedule.

Delegate Chris Pritt of Kanawha County proposed an amendment that was adopted to require the County Clerk to send claims to the personal representative by certified mail. Several Delegates said that is already being done in their counties, but Delegate Pritt said the problem involves the probate office receiving the complaint and the executor not receiving it.

Creating the Responsible Gaming and Research Act

Counsel said the data, which will not be public record, will be turned over to West Virginia University to improve the integrity of gaming and allow WVU to conduct research. The only other state with a similar law is Nevada.

A WVU professor of economics spoke in support of the bill. He said research results will go to the Legislature and businesses to help them do a better job. He added that research on problem gambling could help address it more efficiently. He said transaction data is much better than survey data.

“West Virginia could be a leader in research and forming policy,” the professor said.

Create a credit against the severance tax to encourage private companies to make infrastructure improvements to highways, roads and bridges in this state

The bill has a Legislative Finding stating, “The establishment and maintenance of infrastructure projects, including a system of good roads and highways in this state, and making of capital investments by taxpayers subject to the tax imposed by §11-13A-1 et seq. of the code, is in the public interest, encourages greater capital investment by other businesses in the coal-producing areas of this state, increases economic opportunity in this state, and thereby promotes the general welfare of the people of this state.

“In order to promote the private investment in infrastructure improvements to roads and highways in this state, and capital investment by coal severance tax taxpayers there is hereby enacted a road and highways infrastructure improvements and coal production and processing facilities tax credit.”

As stated in HB4772, the purpose of the legislation is to “encourage greater capital investment in coal production and processing facilities.”

HB4772 defines both expenditures for road or highway infrastructure projects and for coal production and processing facilities.

The general “amount of credit allowable is determined by multiplying the amount of the taxpayer’s expenditures for road or highway infrastructure improvement projects (as determined and certified by the Secretary of Transportation), plus the amount of the taxpayer’s qualified investment in coal production and processing facilities, by 50%. The amount of credit allowable may be taken against up to 20% of taxpayer’s annual severance tax liability…. Where taxpayer’s expenditure involves a road or highway infrastructure improvement. the credit may be taken in the year the improvement is completed as certified by the Transportation Secretary. “

In cases where the expenditure involves coal production and processing facilities, the credit may be taken in the year the property is first placed into service or used by the taxpayer. The annual credit allowance shall be taken in the manner prescribed (in HB5338). The aggregate annual credit allowance may be claimed by taxpayer against its severance tax liability shown on its monthly tax returns at the rate of one-twelfth of the annual credit allowance per month.

Relating to Safe Harbor for Cybersecurity Programs

HB5338, effective January 1, 2025, would “establish a statewide, comprehensive enactment that applies to all parts of the state, operating uniformly throughout the state. No political subdivision of this state shall be construed by any provision of this article to be authorized to enact any law regarding the controlling or processing of personal data.”

As enacted, HB5538 is considered “declaratory of existing law,” meaning the bill’s provisions become the law on a particular subject, which states the rights of the parties without specifying the action to be taken.

Under terms of HB5338, consumers have rights to access, correct, delete, obtain a copy of personal data, and to opt out of the processing of personal data for the purposes of targeted advertising.

The state Attorney General has sole authority to enforce violations of the law.

A covered entity seeking affirmative defense, based on the statute, is required to “maintain and comply with a written cybersecurity program that contains administrative, technical, operational, and physical safeguards for the protection of both personal information and restricted information.”

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