From the Well | February 27, 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 27, 2024

West Virginia News Headlines

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DRUG TREATMENT: The Senate’s Committee on Finance passed Senate Bill 805, which aims to improve substance-abuse treatment outcomes through Medicaid-managed care and a quality withhold program.

EMT PROGRAM: The Senate Health and Human Services Committee passed legislation designed to train more emergency medical technicians (EMTs).

SCHOOL PSYCHOLOGISTS: The Senate Education Committee legislation that would support the interstate practice of school psychology in educational or school settings and improve the availability of school psychological services.

DRUG CRIME: The House Judiciary Committee deferred further action on legislation intended to criminalize some drug-related offenses, including those involving second offenses for marijuana possession as felonies.

TRESPASSING: The House Judiciary Committee combined Senate Bill 164 with the House-passed version of legislation that deals with trespassing.

JUDICIAL REVIEW: The Senate Judiciary Committee adopted a strike-and-insert amendment for a bill that involves judicial review of Bureau of Employment decisions.

CORRECTIONS OVERSIGHT: The Senate Government Organization Committee passed a bill establishing a legislative oversight committee of the Division of Corrections and Rehabilitation.

PROSECUTOR TRAINING: The House Judiciary Committee passed legislation that relates to training newly appointed or elected prosecuting attorneys.

CRIMINAL INVESTIGATIONS: The House Judiciary Committee adopted legislation that would require the West Virginia Fusion Center to create a “cold-case” database.

BEHAVIORIAL HEALTH: The Senate Health and Human Resources Committee passed House Bill 5248, which establishes two types of behavioral health centers.

ELECTION INTEGRITY: The Senate Judiciary Committee adopted an Originating Concurrent Resolution to study the feasibility of ballot identification and verification measures.

EMPLOYEE GRIEVANCES: The House Judiciary Committee approved Senate Bill 370, which Counsel said updates various sections of the state’s Public Employees Grievance Procedure.

Incorporation of Churches or

Religious Denominations Amendment

Currently, the state constitution prohibits religious incorporation.

If adopted by the Legislature and approved by voters during the 2024 general election, the amendment would permit the Legislature to pass laws allowing religious incorporation in West Virginia.

West Virginia remains the only state with such a prohibition. The Legislature adopted a near identical resolution during the 2021 regular session and placed it on the November 2022 general-election ballot. It failed by about 55% to 45%.

Modifying Medicaid reimbursements for services at residential substance abuse treatment facilities

The bill would require automatic enrollment of all Medicaid recipients into managed-care organizations (MCOs) starting July 1, 2024. It also requires developing performance measures for substance-use disorder providers using national standards to be implemented by January 2025.

Additionally, the bill mandates establishing a quality withhold program based on national performance measures, including for substance-use disorders. The program would start withholding a portion of provider payments subject to the quality of performance beginning July 2024.

Committee Counsel Jeff Johnson told the Committee the bill is expected to be cost-saver over time annually for the state Medicaid program because of the streamlining of enrollment into MCOs.

Relating to establishing a program for emergency medical services personnel to become certified paramedics

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

HB5347 establishes a program to provide state assistance through an existing fund to help emergency medical technicians (EMTs) become certified paramedics after working as EMTs for three years. It also amends the existing revenue fund that can be used to provide grants to equip emergency medical service providers and train personnel to now also allow assisting EMTs to become paramedics.

The bill clarifies the administrative appeals process to align it with the Administrative Procedures Act. A strike-and-insert amendment clarifies the new position being referred to as an emergency medical technician.

To facilitate the interstate practice of School Psychology in educational or school settings

The Compact would “facilitate the interstate practice of school psychology in educational or school settings, and in so doing to improve the availability of school psychological services to the public.”

The bill said the Compact is intended to establish a pathway to allow school psychologists to obtain equivalent licenses to provide school psychological services in member state and ensure that safe and effective school psychological services are available and delivered by qualified professionals.

Compact’s objectives would:

1.   Enable school psychologists who qualify for receipt of an equivalent license (as defined in the bill) to practice in other member states without first satisfying burdensome and duplicative requirements;

2.  Promote the mobility of school psychologists between and among the Member States to address workforce shortages and to ensure that safe and reliable school psychological services are available in each member state;

3.  Enhance the public accessibility of school psychological services by increasing the availability of qualified, licensed school psychologists through the establishment of an efficient and streamlined pathway for licensees to practice in other member states;

4.  Preserve and respect the authority of each member state to protect the health and safety of its residents by ensuring that only qualified, licensed professionals are authorized to provide school psychological services within that state;

5.   Require school psychologists practicing within a member state to comply with the scope-of-practice laws present in the state where the school psychological services are being provided;

6.  Promote cooperation between the member states in regulating the practice of school psychology within those states; and

7.   Facilitate the relocation of military members and their spouses who are licensed to provide school psychological services.

To obtain and maintain an Equivalent License from a Receiving State under this Compact, a Licensee must:

·     Hold and maintain an active home state license;

·     Satisfy any applicable state-specific requirements established by the member state after an equivalent license is granted;

·     Complete any administrative or application requirements which the Commission may establish by rule and pay any associated fees; and

·     complete any requirements for renewal in the home state, including applicable continuing professional education requirements;

·     Upon application to receive a license under this Compact, undergo a criminal background check in the member state in which the equivalent license is sought in accordance with the laws and regulations of such member state

Additional bill provisions detail compact operations.

Increasing penalties for drug possession and updating list of offenses

In discussing SB54, House Judiciary chose to increase the penalties for possession so there was a longer jail term without resorting to the felony provisions the Senate included in SB154.

While Committee members voiced support for the concept, Delegates noted that many counties lacked a drug court. Moreover, based on testimony from a Committee member, who discussed a familial situation, threat of a longer jail term might have served as a deterrent for the relative involved, especially given other programs aimed at curbing substance abuse which exist.

A representative of the West Virginia Friends Service Committee said “relapse” was a significant factor in terms of rehabilitation and that the use of the drug court approach would not necessarily work given other dynamics relating to curbing substance abuse.

Senator Vince Deeds of Greenbrier County, a Senate sponsor of the legislation, told the Committee that SB154 was intended to divert persons into drug-court programs in a speedier manner. Deeds said that would result in less crime associated with or residual to drug possession.

Under terms of the Senate bill, failure to participate and pass drug-court programs would have resulted in a felony charge rather than reverting to a misdemeanor charge.

Relating generally to trespassing

SB164 relates to trespass generally, including a provision that a person convicted with liability resulting from trespass is “liable to the victim in an amount equal to twice the monetary value of any damage or waste he or she caused to the property which includes cost of cleanup.” The House-passed version includes references to provisions not relating to labor-related matters.

The House legislation is included in HB5130.

That bill also increases penalties.

HB5130 language says its 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.”

Relating to judicial review of Board decisions

The strike-and-insert amendment removes references to the Circuit Court of Kanawha County, which is where those appeals have been filed. It also removes “West Virginia” used in the Committee Substitute for the West Virginia Intermediate Court of Appeals because in statute it is just Intermediate Court of Appeals.

Establishing the legislative oversight committee of the Division of Corrections and Rehabilitation

Counsel said the powers and duties of the oversight committee remain the same except for two new provisions in the bill.

The bill is second-referenced to Senate Judiciary Committee.

The new provisions authorize the oversight committee to request information that the Division of Corrections and Rehabilitation is obligated to provide and allows the oversight committee to go into an executive session to conduct proceedings into an investigation or question witnesses.

Directing Prosecuting Attorneys Institute to make training available to certain new prosecuting attorneys

Additionally, House Judiciary amended SB451, in the words of Committee counsel, so prosecuting attorneys “actually complete the trainings.”

As adopted by the Senate, SB451 directs the Prosecuting Attorneys Institute to “(establish)…a training program for all newly appointed or newly elected prosecuting attorneys.”

Relating to civil service for deputy sheriffs

Creating cold case database

The bill defines “cold case” to mean “any investigation into a qualifying crime, a missing person, or unidentified human remains where all investigative leads have been exhausted and the crime remains unsolved.”

Under the legislation, which includes an extensive listing of definitions, law enforcement agencies would be required to provide information to the Fusion Center regarding cold cases as defined in the bill.

House Judiciary amended the legislation so the Fusion Center may request information pertinent to the bill’s definition of cold cases.

The Committee also expanded cold cases to include deaths involving explosions, child abuse and neglect, and crimes that relate to chastity and morality while also refining existing definitions included in SB539.

SB539 directs the Fusion Center to “maintain the information contained within the database indefinitely.”

The legislation includes an extensive list of information to be provided to the Fusion Center relating to the crime, including forensic information, related notes regarding law enforcement investigation of cold-case deaths and physical evidence, as well as information regarding identify of law enforcement officials investigating deaths.

Relating to the regulation of behavioral health centers

HB5248 creates residential behavioral health centers and non-residential behavioral health centers. It requires both types of centers to obtain an initial or renewal license.

The bill sets requirements for license applications, fees, operational standards, background checks, and recordkeeping. It addresses telehealth and restrictions on forensic group homes.

The bill outlines processes for license denial, suspension, revocation, and civil monetary penalties for violations. It provides for informal dispute resolution, rulemaking authority and repeals some existing code sections.

A strike-and-insert amendment removed definitions for “addiction advocate” and “behavioral disability” from the bill.

The definition of “group residential home” was amended to clarify that a behavioral health provider does not need to obtain a license for a residence when an individual with a behavioral or developmental disability owns or leases that residence. That was intended to specify that behavioral health providers do not need separate licensing for individual clients’ homes when providing in-home services.

Study the feasibility of ballot identification and verification measures

The study would include the concept of each voter being able to see his or her ballot. The Secretary of State, County Clerks, and others would be involved in the study that would review costs and other information relevant to the study.

Linda Grimley, representing the West Virginia Citizens for Election Integrity, said, “I do not trust election results anymore.”

She said her organization wants clean elections and the ability to verify votes in the most secure way possible.

“We need to balance secrecy without blindly trusting machines,” she said.

Senator Caputo asked whether she had any examples of impropriety in West Virginia. She responded that a group in Parkersburg that did a door-knocking campaign found nine empty lots where someone had voted from those addresses. She added that five husband and wife voters said they both had voted but only one was on the list

“These anomalies show that something was wrong,” Ms. Grimley concluded. She said the Secretary of State is investigating.

Senator Jay Taylor of Taylor County expressed concerns about having the image of a ballot and then showing it to someone to be paid $100 for their vote. Ms. Grimley said that taking a picture of a ballot is legal now.

David Cook, Chief Counsel for the Secretary of State, clarified that it is not legal in the voting booth, but it is not prohibited as you take the ballot from the booth to drop it in the box.

Senator Mike Caputo of Marion County asked Julie Archer, President of the League of Women Voters, if she had any examples of improprieties. She said the organization supported a study, but West Virginia has very good election with systems in place to ensure integrity.

Senator Caputo, a Democrat, added, “If we’re stealing elections, we need to get better at it. We’re losing left and right.”

He noted that he won his first election by just 10 votes.

Speaking in support of the study resolution, Senator Mike Azinger of Wood County said, “Nationally, I believe there are big problems. Those problems could bleed into the state of West Virginia.”

Updating Public Employees Grievance Board procedure that certain decisions be appealed to Intermediate Court of Appeals

According to Committee Counsel, the decision of the Grievance Board’s administrative law judge is final upon the parties and is enforceable in the Circuit Court situated in the judicial district in which the grievant is employed.

Any appeal of the decision of the Administrative Law Judge “shall be to the Intermediate Court of Appeals and the Rules of Appellate Procedure.”

Relating generally to waiver of initial licensing fees for certain individuals

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