From the Well | March 6, 2024

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86th West Virginia Legislature

State Capitol

March 6, 2024

West Virginia News Headlines

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VACCINATIONS: The Senate Health and Human Resources Committee passed a changed vaccination bill.

CRIMINAL JUSTICE: The Senate Judiciary Committee adopted a revised version of House Bill 4999, which relates to spousal testimony privilege and expands the privilege to include minors.

IMAGE MANIPULATION: The House Judiciary Committee passed Senate Bill 740, which prohibits the digital manipulation of sexually explicit content to include minors.

GAMBLER BAN: The Senate Judiciary Committee adopted legislation that would give the state Lottery Commission rulemaking authority to ban certain persons from sports wagering.

GAMBLING REPORT: The Senate Judiciary Committee passed House Bill 5668, which calls for a study on the effects on gambling.

RECOVERY: The House Judiciary Committee passed an amendment for Committee Substitute for Senate Bill 475, which relates to recovery residences and the Patient Brokering Act.

TRUTH IN FOOD: The Senate Judiciary Committee adopted legislation that establishes the West Virginia Truth in Food Labeling Act.

AI TECHNOLOGY: The House Committee on Artificial Intelligence heard a presentation about the technology’s evolution.

CHILD SUPPORT: The House Judiciary Committee passed legislation dealing with child support in the context of child abuse and neglect proceedings when a child is in the custody of the state.

CONFIDENTIAL RECORDS: The House Judiciary Committee passed Senate Bill 768, which authorizes the sharing of confidential records in circumstances of missing children who are not in state custody.

MISSING CHILDREN: The House Judiciary Committee passed legislation that authorizes the sharing of confidential records of missing children who are not in state custody under the Department of Human Services (DHS).

TAX APPEALS: The House Judiciary Committee passed Senate Bill 858 to authorize that the failure to file a property tax assessment appeal or complaint shall not bar the Office of Tax Appeals (OTA) from hearing an appeal.

VOTER RECORDS: The House Judiciary Committee passed legislation that deals with canceling voter registration records for West Virginians who have moved to other states and obtained a driver’s license in those states.

MOONSHINE: The Senate Committee on Government Organization approved legislation that Counsel said amends an existing code section regarding the prohibition on distilling spirits, specifically moonshine.

HIGH SCHOOL CREDITS: The Senate Education Committee passed legislation that Counsel said requires all West Virginia high school students to receive one-half credit hour in personal finance or computer science and technology as a high school graduation requirement.

ASSISTED DEATH: The Senate Judiciary Committee passed House Bill 4320, which relates to prohibiting assisted suicide or other means of ending life.

·     SB146 (Creating adult education taskforce) passed without debate 94-2-4

·     SB160 (Updating language and increasing penalties for indecent exposure) postponed one day

·     SB438 (Modifying roster requirements of authorizing entities) passed 96-0-4

SECOND READING

·     SB2 (Authorizing DEP to promulgate rules) Judiciary Committee offered a technical and clean up amendment that passed on a voice vote. The bill advanced to third reading.

·     SB36 (Authorizing Department of Homeland Security to promulgate legislative rules) was amended by the Judiciary committee and advanced to third reading.

·     SB50 (Authorizing Department of Revenue to promulgate legislative rules) also was amended by the Judiciary committee and advanced.

·     SB155 (Creating Violent Crime Prevention Act) advanced to third reading with minor amendment.

·     SB166 (Updating contested elections procedures) Advanced

·     SB170 (Relating to compensable diseases of certain firefighters covered by workers’ compensation) Advanced

·     SB445 (Reducing certification periods and renewal fees for EMS personnel) Advanced with minor amendment.

·     SB587 (Enabling State Fire Commission to propose legislative rules) Advanced

·     SB632 (Relating to Dangerousness Assessment Advisory Board multi-disciplinary study group) Advanced to third reading with the right to amend.

·     SB687 (Clarifying Legislative Auditor’s scope of authority) Advanced to third reading with right to amend.

·     SB732 (Requiring cooperation between law-enforcement agencies and military authorities) Advanced

SENATE MESSAGES:

·     SB219 (Relating to Uniform Controlled Substances Act) The Senate refused to concur in the House amendment, and the House refused to recede there from. The House appointed Delegates Kelly, Steel, and Garcia as conferees.

·     SB451 (Directing Prosecuting Attorneys Institute to make training available to certain new prosecuting attorneys) The Senate refused to concur in the House amendments and asked the Housed to recede. The motion to recede passed 66-31-3, and the bill was passed 93–4-3.

·     HB4845 (To prohibit swatting) was amended by the Senate. The House concurred in the Senate amendment and passed the bill 97-0-3.

·     SB4940 (A squatter cannot be considered a tenant in WV) was amended by the Senate. The House concurred with the Senate amendment and passed the bill 97-0-3.

·     The following bills were reported to the floor by the House Judiciary Committee. Each bill was read a first time and advanced to second reading:

·     SB785 (Allowing Foster Care Ombudsman access to child protective records)

·     SB159 (Prohibiting persons convicted of certain crimes against minors from holding positions on boards of education)

·     SB548 (Clarifying appellate jurisdiction of Intermediate Court of Appeals)

·     SB778 (Amending certain qualifying offenses to enhance sentences of repeat offenders)

·     SB716 (Relating to child support)

·     SB768 (Providing exception for sharing of confidential child welfare records)

·     SB858 (Clarifying filing requirements and deadlines in property tax cases)

·     SB475 (Relating to recovery residences)

·     The House Finance Committee passed SB679 (Regulating certain plant-based derivatives, hemp-derived cannabinoid products, and Kratom). The bill was read a first time.

To eliminate the vaccine requirements for public virtual schools

Immediately after passage of the bill, Chairman Mike Maroney of Marshall County, a medical doctor, said, “This bill would not be on the agenda if it was my choice. I took an oath to do no harm, and this bill does harm.”

He also said it should have a fiscal note that he requested because treating a case of measles can cost $20,000 to $80,000.

In the House of Delegates, the scope of the bill added several types of schools in addition to public virtual schools and also added a broad religious exemption to vaccines with no specifications except that the parent present a letter that his or her children were not to be vaccinated because of religious convictions.

The Senate Committee’s strike-and-insert amendment that passed allows private and parochial schools to elect their immunization policy in writing if the policy is in any way different from the mandatory schedule. Those schools are to provide the policy in writing annually and must receive signed acknowledgement from parents. Competition or other events with public schools will require the mandatory vaccination schedule. A student in a public virtual school is not mandated to be vaccinated.

The religious exemption is entirely removed from the Senate’s strike-and-insert amendment. Counsel emphasized that private and parochial schools can craft their policy however they want, including requiring some vaccines but not others, no vaccines, or allowing religious exemptions. In response to a question, Counsel said no public school student is exempt under the Senate’ amendment.

Dr. Lisa Costello, pediatric hospitalist at West Virginia University Children’s Hospital and Immediate Past President of the State Medical Association and the West Virginia Academy of Pediatrics, said, “This bill causes me great concern. West Virginia is a national leader.”

She said any effort to weaken immunizations is opening the door to invite diseases back into our communities. She reminded the Committee that measles is an acute illness and can cause seizures, brain swelling, and pneumonia.

Dr. Costello concluded her remarks by noting that she drove from Morgantown with a car seat in her car, which is required by law for her young child. She pointed out that it is mandated in her private car, and that is comparable to immunizations in that both save lives and money.

“Measles do not care if you go to public school or private school,” Dr. Costello said.

Senator Patricia Rucker of Jefferson County asked Dr. Albert Moss, a professor of medicine, to speak to the bill. He said he did not share Dr. Costello’s opinions and had seen vaccine injury in his own family. He added that compulsory policy doesn’t allow for informed consent, and vaccines can cause injury and death.

Senator Rollan Roberts of Raleigh County asked Chanda Adkins, a pharmacist and former Delegate, to provide her thoughts on the bill. She told the Committee she wanted to educate her children under God’s word.

“They get to choose to live their convictions. Praise the Lord for that. The first authority in my life is the Bible,” Ms. Adkins said.

In response to a question from Senator Tom Takubo of Kanawha County, a medical doctor, Ms. Adkins said she was “kicked out” of her pediatrician’s office because she wanted to do something different rather than follow the immunizations law.

Chair Maroney countered, “If you want to be able to make choices, you have to accept other people’s choices.”

Dr. Steven Eshenaur told the Committee he has seen all these communicable diseases in his work overseas, including cases of polio in Afghanistan. He reminded the Committee that immunization laws were passed because measles, mumps, rubella, etc., affected communities.

“School vaccinations have tremendous success. There are reactions to many medicines,” Dr. Eshenaur said, adding, “There is no exemption from disease. It affects everybody.”

Senator Ryan Weld of Brooke County added to the discussion, saying that during his tour of duty in Afghanistan there was an effort to vaccinate children for polio that the Taliban thwarted. Now they have reversed their stance on polio vaccine in recognition that the disease is taking over their country.

Creating exception to spousal privilege

Senator Patrick Martin of Lewis County questioned whether the term “other disability” would amount to “a runaway train” if the term weren’t more specifically defined, saying, “Almost everyone has some type disability.”

Following Committee discussion regarding Martin’s concern, Senator Mike Woelfel of Cabell County, echoing other Senators and Senate Judiciary Counsel, noted individuals “deemed incompetent” would include persons that courts or other officials say were not deemed to have the ability to testify in judicial proceedings, including persons suffering from intellectual conditions and/or persons who were profoundly disabled.

Senator Woelfel said the intent is to protect “vulnerable” persons while allowing testimony regarding situations wherein such abuse is suspected by a spouse.

According to Committee Counsel, courts should be able to “reasonably apply” HB4999 statutory standards.

Counsel also said the legislation was prompted by a situation that involved a husband sexually abusing a foster child. Current law does not provide the spouse the ability to testify.

Prohibiting digital manipulation of sexually explicit content to include minors

Counsel said the Committee Substitute amendment inserts identical language to the previous House bill, so there are no changes to what already had passed the House. The Committee Substitute for SB740 was adopted.

In summary, the Committee moved to replace the entire bill text of SB740 with identical language from HB5516 and then voted to pass the amended bill out of Committee to the full legislative chamber for consideration. After the bill passes the full House, the Senate must accept it before sending it to the Governor for his approval.

Banning certain persons from sport wagering activities

HB4700 would require the Lottery Commission to develop a legislative rule that enumerates the reasons for which patrons of sports gaming may be banned from engaging in sports betting.

The list of reasons for which patrons may be banned shall include but not be limited to:

·     A prior criminal conviction for assault, battery on athletic officials

·     A prior violation of an order of the commission; and

·     If the commission determines the person poses a threat to the safety of patrons or participants in a sporting event or determines the person has engaged in a pattern of conduct of harassing a sports official, coach, or any participants.

The rule must also provide the procedure by which complaints against patrons are lodged with and investigated by the Commission.

As stated in HB4700, the Lottery Commission “shall notify a person of the commission’s intent to ban such person from sports betting, and such person is entitled to a hearing before the commission.” Vice Chairman Ryan Weld of Brooke County noted that occurs now.

Senator Mike Stuart of Kanawha County asked Counsel how long rulemaking takes.

Committee Counsel said the time for rules development, under the state’s Administrative Procedures Act, could take up to 18 months. Stuart said the offending sports wagerer would be permitted to engage in those activities during that time.

After a brief discussion regarding Senator Stuart’s concern, Senate Judiciary Chair Charles Trump of Morgan County moved to amend the bill so the Lottery Commission would have leeway to an emergency rule to address sports wagerers cited for violating the statute.

Senator Trump noted the complete rule, including the emergency provision, would be brought before the Legislature’s Joint Committee on Governance Finance Rule-Making Review. That prompted Senator Stuart to say a “very happy” sports-wagering offender would not be able to participate in sports betting until the Lottery Commission rules were adopted.

Creating the Responsible Gaming and Research Act

Based on legislation and as explained by the Committee, the Department of Human Services would be required to make a “comprehensive report to be prepared and distributed to the Joint Committee on Government and Finance on the impact of casino, iGaming, racing, iLottery, and sports wagering, on problem gamblers and gambling addiction in West Virginia.

The report is to be prepared and distributed in coordination with the State Lottery Commission.

As stated in the statute, operators, management service providers, racing operators, sports pool operators, sports pool intermediaries, special retailers, and/or lottery operators or vendors are required to provide to “West Virginia University on a monthly, a quarterly, or an annual basis, all transactional data and metrics related to their gaming operations conducted in the state for the purpose of conducting research to assist the Department of Human Services, State Lottery Commission, or a successor agency or agencies, in ensuring the integrity of gaming or to improve state-funded services related to, or general understanding of, responsible gambling, and problem gambling.”

Senator Mike Stuart of Kanawha County raised a question about data relating to scholarly research that is not open to Freedom of Information release. Senate Judiciary Chairman

Charles Trump of Morgan County noted the West Virginia Legislature authors the FOIA and its application to various public agencies.

Relating to recovery residences

The bill requires that all residential recovery facilities must be registered with the Office of Health Facility Licensure and Certification (OFLAC). Recovery residences have until January 1, 2025, to register.

The Office of Inspector General has oversight and enforces the Patient Brokering Act. The bill provides that a recovery residence cannot receive a person released from prison unless the recovery residence is certified.

The House Judiciary Committee voted to reject the strike-and-insert amendment that came from House Health and Human Resources Committee and passed its strike-and-insert amendment that primarily corrected the code numbering.

“Ladies and gentlemen, that’s called a wrap,” Chairman Tom Fast of Fayette County said at the conclusion of the meeting.

West Virginia Truth in Food Labeling Act

Based on Committee Counsel remarks to the Senate Judiciary Committee, the legislation has several purposes, including greater consumer knowledge regarding laboratory-grown meat based on these definitions:

·     “Analogue product” means a food product derived by combining processed plant products, insects, or fungus with food additives to approximate the texture, flavor, appearance, or other aesthetic qualities or the chemical characteristics of any specific type of egg, egg product, fish, meat, meat food product, poultry, or poultry product.

·     “Cell-cultured product” means a food product derived by harvesting animal cells and artificially replicating those cells in a growth medium in a laboratory to produce tissue.

·     “Egg,” “Egg product,” “Fish,” “Meat,” and “Meat Food Product” include terms assigned either in federal law or state law.

·     “Poultry product” also includes the meaning assigned by federal law.

The bill outlines how a food may be deemed to be misbranded or mislabeled.

Counsel said the proposed West Virginia law is based on laws in other states, including Texas.

A final bill provision requires the Commissioner of Health and Human Services to adopt rules for implementing the law.

Mr. Spence stressed the need for a common language regarding AI terminology to avoid confusion and uncertainty. He discussed how vague or anthropomorphic descriptions of AI capabilities could mislead people. He differentiated between “AI-enhanced” capabilities that could improve images or videos without deception versus “AI-manipulated” techniques that aim to intentionally mislead people.

Mr. Spence also warned against anthropomorphic descriptions of AI that make comparisons to human abilities when the capabilities may not be the same. For example, describing a fruit-picking robot as “seeing” could be misleading if it only detects colors.

Mr. Spence then addressed how AI will impact the workforce. He argued that digital proficiency will be crucial for all jobs in the future. Those who are most skilled at leveraging technology as a tool will find the most success. Partnerships between different sectors like government, business, and academia also will be important for navigating disruption caused by AI.

Addressing cybersecurity, Mr. Spence suggested implementing digital watermarks or certificates on official videos and communications to validate their authenticity and prevent techniques like deep fakes.

When asked about education, Mr. Spence emphasized exposing students to careers in emerging fields like cybersecurity through internships and apprenticeships. Hands-on experience was seen as vital for helping students understand different pathways.

The Committee discussed encouraging the next generation towards STEM careers centered around their natural talents.

In closing, Mr. Spence emphasized the importance of leveraging AI’s capabilities while still requiring human judgment and oversight.

Relating to child support

The bill recognizes that a circuit court judge’s authority over child support is limited, and it provides that a circuit court judge can request the Bureau of Child Support Enforcement to run the formula it uses to provide the amount without having to appear in court.

Counsel emphasized that a “zero” child support order does not affect children who are getting necessities from other available funding sources. If parents have the financial means, they might have support obligations while a child is in state custody and the parents are going through an improvement period.

Providing exception for sharing of confidential child welfare records

The purpose of this bill is to provide an exception to the confidentiality of child-welfare records to allow the sharing of confidential information with law-enforcement agencies and the National Center for Missing and Exploited Children. Currently, DHS can provide only that information with parental permission, and there are situations where parental permission cannot be fulfilled.

Counsel explained further that this bill will put West Virginia in compliance with federal Title 4E, which provides significant funding.

Jeffrey Pack, representing DHS, said that the bill would apply only to children who are known to the department but not in custody. He said the family may be receiving services, but the children have not been taken into custody.

Clarifying filing requirements and deadlines in property tax cases

Counsel clarified that the bill gives OTA the ability but not a requirement to accept appeals.

Michael Beavers, Administrative Law Judge for OTA, responded to a question about what prompted the bill. He said there is a series of deadlines in code and, currently, missing them denies an appeal. He added there have been a number of complaints about the lack of notice for rising property taxes.

Last year was the first year of those cases coming to OTA, Mr. Beavers said, and he added that there were 400 to 500 cases, some of which were resolved at the county level.

The bill clarifies that OTA has jurisdiction to consider arguments even if a deadline is missed. Those types of appeals also apply to oil and gas royalties. The deadline for the appeal is March 31 and applies to all cases.

Cancelling voter registration records for individuals no longer WV residents

Committee Counsel noted the Division of Motor Vehicles (DMV) is responsible for maintaining voter registration records and transmitting information about license changes to other states. Donald Kersey from the Secretary of State’s Office explained the “State to State” program that DMVs used to share driver’s license data in near real-time as people obtain licenses in new states.

Mr. Kersey believes the state-to-state data would allow for the most comprehensive information possible to determine residency changes.

Additionally, Mr. Kersey was asked how past voting records would be handled if registrations were canceled. Mr. Kersey clarified that canceled only means a voter can’t cast a regular ballot, and that records must be maintained for five years minimum before they are completely purged from the database.

The Committee passed SB624, which now heads to the full House for consideration.

Relating to distilled liquor

The proposed amendment would create an exception allowing for personal or family manufacture of distilled spirits in limited amounts. Originally, the bill passed by the House set particular limits, but the Committee considered a strike-and-insert amendment that proposed changing those limits.

Specifically, the amendment would allow up to five gallons per calendar year for households with one adult over 21 and up to 10 gallons for households with two or more adults 21 and older. Any spirits manufactured could not be sold.

The bill now heads to the full Senate for consideration before going back to the House for concurrence. If the House would choose not to concur with the Senate’s changes, the bill will be placed in a conference committee.

To provide and change graduation requirements and change duties relating to academic content standards

Here are among the course requirements established in statute and subject to additional state Board of Education rulemaking:

Beginning with the class of students entering ninth grade in the 2024-2025 school year and thereafter, each high school student would be required to complete one-half credit course of study in personal finance during his or her ninth through 12th grade year as a requirement for high school graduation.

Beginning with the ninth-grade class entering in the 2026-27 school year, a public high school student would be required to earn one-half unit of credit in a high school computer science course before the student graduates.

“Computer science” is defined as “the study of computers, programming, and algorithms, including their principles, hardware and software designs, and impact on society. Computer science does not include the study of everyday uses of computers and computer applications, such as keyboarding, word processing, digital literacy, or accessing the internet.”

HB5553 goes to the full Senate.

Relating to access for minor children’s medical records

The bill title does reflect the bill as amended today.

Although the measure was adopted as amended, Senator Patricia Rucker of Jefferson County said she was “sad the original intent of the legislation is gone,” namely relating to parent or guardian access to a minor child’s records.

Committee Chair Charles Trump of Morgan County suggested members seek other vehicles to include the content of the original HB4320.