From the Well | February 23, 2023

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

Countdown: 16 days to go

February 23, 2023

Public nuisance is defined as an ongoing and unlawful condition that proximately causes an interference with an established public right. An established public right means a right commonly held by all members of the public to the use of public land, air, or water.

Senator Mark Maynard of Wayne County offered an amendment relating to sporting events venues that was adopted.

Bill creates reckless-driving felony

The Senate Judiciary Committee passed committee substitute for Senate Bill 660 after a lengthy discussion. The bill creates a new felony offense of reckless driving causing death and establishes penalties.

Senator Patricia Rucker of Jefferson County asked what exactly the bill would pertain to.

Counsel said, “It will be interpreted by the prosecutor and the court.” He added that it is implicit in case law that the behavior would be considered by a normal person to be outrageous and showed a willful or wanton disregard.

Jefferson County Prosecuting Attorney Matthew Harvey spoke in favor of the bill on behalf of the citizens of Jefferson County. He described having to sit with families whose child had been taken by a reckless driver, but the person who caused the death would face a maximum sentence of six months under current law.

Examples given by Prosecutor Harvey included drag racing and killing someone or passing a school bus with lights on and killing someone. He noted that the man who drove into a parade in Minnesota and killed eight people could only be charged for eight misdemeanors.

Chairman Charles Trump of Morgan County asked Prosecutor Harvey to tell the Committee about a particularly egregious case in Jefferson County. Prosecutor Harvey said a young man had just gotten his license and had lied to get it. He traveled at a high rate of speed in an old SUV, lost control, and struck a Dodge Ram truck head on with enough force to throw it up a bank. The woman driving it was killed instantly, and the young man’s passenger was also killed.

Prosecutor Harvey said the driver causing the accident was sentenced to 60 days in jail and was out in 30 days.

Senator Ryan Weld of Brooke County asked him whether the statute would provide a modicum of justice in that case; Harvey said it would.

Senator Mark Hunt of Kanawha County proposed an amendment that speed alone cannot be the sole basis for a charge of reckless driving. Chairman Charles Trump spoke against the amendment, saying, “Sometimes speed alone is the sole cause of reckless driving.”

Senator Weld responded to the amendment with an example of drag racing on an Interstate, hitting a car going slower, and killing a person. The sole factor was speeding, but the amendment wouldn’t allow the driver to be charged with a felony.

Senator David Stover of Wyoming County weighed in, saying he always drives the speed limit and is passed on a regular basis.

“Everybody speeds. Are they all felons?” asked Senator Stover. Chairman Trump responded that a jury would decide whether the conduct was reckless.

Senator Hunt argued that the bill with his amendment gave prosecutors a lot of leeway, but the amendment failed.

Bill increases penalties for drug possession

Committee substitute for Senate Bill 547 passed the Committee after testimony from several prosecuting attorneys.

The bill would increase the penalties for drug possession based primarily on weight. Counsel gave the example that the sentence for possession of five or more grams of fentanyl would be 10 to 30 years or a fine of $100,000 or both.

The bill also increases penalties for transportation and distribution of controlled substances into West Virginia

Counsel explained that using felony status for possession of schedule 1 or 2 narcotics could facilitate treatment options that are more available with a felony charge.

Senator Chandler Swope of Mercer County asked whether five grams of fentanyl is a fatal dose.

“Five grams of fentanyl would kill a whole lot of people,” said Counsel.

Patrick Via, Greenbrier County Prosecuting Attorney for 15 years, was asked by Senator Vince Deeds of Greenbrier County, “What is lacking in current code?”

Prosecutor Via said the bill offers effective deterrents for those selling drugs, particularly methamphetamine, heroin, cocaine, and fentanyl. He said current code is out of step with federal guidelines and other states.

Via added that another important component of the bill is to create a felony offense for possession of schedule 1 and 2 narcotics. The reason for this, he said, is to act as crime prevention and early intervention into addiction.

“We currently can do nothing with possession cases,” said Via, adding there is no force and effect. “This bill gives us the opportunity to intervene before that person, an addict, becomes a criminal who breaks and enters.”

Prosecutor Via went on to explain that the felony possession would leave discretion for law enforcement and prosecutors, based on other charges. He pointed out that if a person has no extended criminal history, that person can enter existing programs.

Anthony Ciliberti Jr., Fayette County Prosecutor, told the committee that the bill is important because whether a person sells a gram or a pound of methamphetamine, the sentence is not less than one year or more than 15 years.

In Fayette County, Prosecutor Ciliberti said the majority of cases involve fentanyl and methamphetamine, and often the heroin turns out to be fentanyl. He added that dealers often think they are selling heroin that turns out to be fentanyl.

This bill allows a charge of one count per controlled substance sold rather than one count for the sale of multiple controlled substances in one transaction.

Ryan Blake, Assistant Prosecutor in Greenbrier County, said the bill would allow intervention for simple possession. As the Drug Court prosecutor in his county, he said currently the court has to wait until crimes are committed to get a person into a drug court program.

“This bill is going to be an excellent opportunity for intervention,” he concluded.

Bill creates Kratom Consumer Protection Act

Committee substitute for Senate Bill 220, passed by Senate Judiciary, deals with kratom. The purpose of the bill is to create the Kratom Consumer Protection Act, regulating the preparation, distribution, and sale of kratom products and prohibiting adulterated products.

Kratom commonly refers to an herbal substance that can produce opioid and stimulant like effects. Kratom and kratom-based products are currently legal and accessible although the United States, and international agencies are reviewing emerging evidence about its use. No uses have been approved by the U. S. Food and Drug Administration.

Bill extends juvenile competency process to status offenders

The Senate Judiciary Committee passed committee substitute for Senate Bill 681, clarifying that the juvenile competency determination process extends to status offenders. Counsel explained the bill fixes an omission in code.

Counsel said the bill provides that persons under the age of 14 will be determined as competent or incompetent on a case-by-case basis rather than “presumptively incompetent.”

BMS is to select an organization with an established adult and youth re-entry program to assist recipients or the parents of children who have been released from jail or prison back into daily life.

The managed health care organizations awarded a contract to perform services must be given at least a six-month notice of the award to prepare for implementation of services.

Finally, the bill exempts BMS from state purchasing rules except when soliciting contracts for specific populations.

Bill aligns ‘Right to Know,’ ‘Child Protection’ acts

The Committee also recommended for passage Committee Substitute for Senate Bill 552, which is intended to harmonize definitions in the “Women’s Right to Know Act” with those in the recently enacted “Unborn Child Protection Act.”

The bill also expands requirements for informed consent, removes liability protection for a physician regarding the prescribing of non-FDA-approved drug therapy, requires the Department of Health and Human Resources to place enhanced information on its web page, and clarifies administrative penalties for licensed medical professionals knowingly and willfully violating the article.

Dr. David C. Jude, MD, FACOG, Chair, Department of Obstetrics and Gynecology at Marshall University, testified about the concerns of the physician community. Specifically, he noted provisions of the bill related to the requirement that physicians discuss unproven medications with their patients. The adopted committee substitute mitigated provisions of the introduced bill related to that duty. The bill has a second reference to the Committee on the Judiciary.

Bill authorizes PAs to own their own practices

The committee approved Senate Bill 650, which authorizes physician assistants to own their own practices. The bill requires the West Virginia Board of Medicine to deny a license or other authorization to physician assistants who make unlawful referrals where that physician assistant has a proprietary interest.

The bill further authorizes physician assistants to form a medical corporation and designates physician assistant as a professional service eligible for establishing a professional limited liability company.

Bill seeks rules for locations of group homes

The committee recommended for passage Senate Bill 679, which requires the Office of the Inspector General to propose rules for legislative approval to include a prohibition that a forensic group home may not be located within one mile of a residential area, a public or private licensed day care center, or a public or private K-12 school.

The bill authorizes the Inspector General to grant a variance to an existing forensic group home but only if the facility demonstrates that it has adequate patient population controls and that it otherwise meets the requirements of the rule.

Legislation bans insurers for imposing some copayments

Finally, the committee originated a bill that prohibits an insurer from imposing a copayment for services rendered by a licensed occupational therapist, licensed occupational therapist assistant, licensed speech-language pathologist, licensed speech-language pathologist assistant, licensed physical therapist or a licensed physical therapist assistant that is more than a copayment imposed for the services from a primary care physician or an osteopathic physician.

The bill is the same as House Bill 3534, which has not been taken up by the House Committee on Health and Human Resources.

The originating bill was recommended for passage by the full Senate. The bill will receive a bill number when it is reported on the floor of the Senate.

A committee substitute removed language that included post-secondary schools in the bill. The Committee also approved the authorization of services to private primary and secondary schools upon request.

Rob Cunningham, Homeland Security Deputy Secretary, expressed support for the bill, stating it is useful in designating more employees to focus exclusively on student and school safety.

HB3369 was reported to the floor with a recommendation that it be passed.

Bill gives judges power to waive home studies

The Committee quickly passed House Bill 2875, which allows circuit judges to waive the requirement of passing a home study when a child is in the custody of the Department of Health and Human Resources and the prospective adoptive parents are the grandparents.

Currently, judges do not have that discretion. HB2875 would allow them to expedite the process and get the children into homes more quickly.

HB2875 was reported to the floor with the recommendation that it be passed.

Legislation alters court salaries, staffing levels

The Committee passed House Bill 3331, which raises the salary of staff members within family and magistrate courts and grants the Supreme Court authority to designate additional staffers.

Currently, the number of staffers is listed for those courts, including their salaries. HB3331 raises staff salaries and removes the number of staff listed. In its place, the bill permits the Supreme Court to designate additional staff when needed.

The Committee reported HB3331 to the full floor with the recommendation that it be passed.

Bill addresses circuit courts, judgeships

The Committee considered and approved a committee substitute for House Bill 3332, which creates judicial circuits and assigns the number of circuit judges in each circuit to be elected in the 2024 election.

HB3332 adds five judges and removes one judgeship. It also establishes that each of the 28 circuits will have two judges. The Committee amended the bill to provide that Wyoming, McDowell, Tyler, Wetzel, Marshall, Upshur, and Lewis all constitute their own division.

HB3332 was reported to the full floor with the recommendation that it be passed as amended.

Students in all grade levels must be present in the school four days per week.

On the fifth day, when students are not present in school:

·    educators are to engage in activities designed to improve instruction as determined by the county board;

·    students have access to school breakfast and lunch; and

·    instruction is to be delivered to students through alternative methods.

Five county boards are to be selected for the pilot, based on expressions of interest. The measure includes a requirement for a status report to Legislative Oversight Committee on Education and Accountability (LOCEA) at the conclusion of each of the three school years after statewide student assessment data is available.

Senate Education Chair Amy Grady of Mason County said the legislation emphasizes “quality over quantity.”

State Superintendent David L. Roach, who is responsible for establishing the pilot, said he was initially “lukewarm” about the concept, but his office is committed to the project. Roach read excerpts from a letter he received from an unnamed county superintendent. The superintendent said the proposal could help school districts concentrate on student achievement augmented by staff professional development

Bill requires posting of curriculm

Senate Bill 422 ensures a county-adopted classroom curriculum is posted on school websites at the beginning of the school year or no later than 30 business days after a new or revised curriculum is adopted.

The state board may provide access, or authorize access, to the county-adopted classroom curriculum. If the school has no publicly accessible website, the information will be posted on the county board website.

Bill taps retired teachers as prospective tutors

Senate Bill 688 allows county boards to contract with retired teachers, who serve as independent contractors, to provide tutoring services to students who could benefit from one-on-one instruction in reading and math.

A contracted employee may reside out of state, although it appears he or she must be retired.

County boards may require background checks to preclude employing independent contractors convicted of sex offenses, child abuse, or possession or distribution of illegal drugs, or misdemeanors or felonies.

Independent contractor tutors can’t participate in state-sponsored benefit plans, including PEIA and retirement. Tutoring program participation doesn’t count toward retirement benefits.

Bill provides reimbursement for Challenge Academy costs

Senate Bill 691 requires the Mountaineer Challenge Academy and the Bureau for Social Services to implement a plan for the Bureau to provide room-and-board reimbursement for cadets’ enrollment costs at the Mountaineer Challenge Academy starting no later than July 1, 2024.

Legislation focuses on dual enrollment

House Bill 2005 establishes a four-year dual-enrollment pilot program to be administered by the Higher Education Policy Commission and the Council for Community and Technical College Education in conjunction with the state school board.

The program requires eligible institutions to offer dual-enrollment courses that comprise individualized pathways for career and post-secondary educational opportunities for secondary school students. They are to include direct care health professions; information technology; science, technology, engineering, and math (STEM) fields; education; advanced manufacturing; welding and fabrication; construction; agriculture; or programs meeting state workforce needs.

The Chancellor is to report to LOCEA about program specifics, such as the number of students participating in the program, credits or credentials earned, job prospects, and projected program growth.

Bill requires Suicide, Crisis Lifeline info on ID cards

House Bill 3218 requires all public schools serving grades 6-12 and public or private institutions of higher learning that issue identification cards to print on both sides of the identification cards the information for the Suicide and Crisis Lifeline and the Crisis Text line.

The fund is to be administered by the Secretary of the Department of Economic Development.

Grant funds are to be used solely for aid in constructing, renovating,and/or expanding agricultural, vocational, and technical training facilities at West Virginia public schools after other funding sources have been exhausted. Funding includes money that might be available from the Appalachian Regional Commission, U.S. Department of Agriculture, and other applicable government or private-sector grants.

Individual grant applicants and the Department of Economic Development are authorized to partner with private-sector agriculture, industry, and businesses to secure private-sector funding for constructing agricultural/vo-tech training facilities.

The administration and management of construction projects funded by these grants are the responsibility of the School Building Authority of West Virginia.

Bill establishes National Merit Scholarship Program

House Bill 3386 creates the West Virginia National Merit Scholarship Program.

The bill includes a legislative finding that a “large percentage of graduates from the state colleges and universities do not work in the state after graduation. This is particularly true for students who are recipients of the prestigious National Merit Scholarship. There is a need to influence increased numbers of students to remain in West Virginia for college and ultimately for work, especially those students who are recognized as the highest academic achievers.”

To be eligible to receive a National Merit Scholarship Program Award, a student is required to maintain a 3.5 GPA, as well as maintain academic progress and meet standards set by the Higher Education Policy Commission.

Annual scholarship awards are equal to, but not greater than, the cost of tuition, room, and board.

The bill has an initial $2 million in funding.

The HEPC is required to determine the number and percentage of recipients who continue to live in West Virginia after graduation; obtain employment in West Virginia after graduation; and enroll in post- graduate education programs.

Bill requires impact statements on closures, consolidations

Senate Bill 51 requires county boards to provide an impact statement on a school closing or consolidation before closing or consolidating except in cases when voters passed a construction bond issue.

A State Board rule is required detailing information that must be included in the impact statement, including at least the impact on student transportation; county fiscal “health” based on school closures or consolidations; student enrollment; school personnel; and “the community.”

County boards are to give the impact statement substantial weight.

Bill creates press freedom protections for students

Senate Bill 121 creates the Student Journalist Press Freedom Protection Act, which gives high school, college, and university student journalists the right to exercise freedom of speech and freedom of the press in school-sponsored media regardless of whether the media is supported financially by the school, uses facilities of the school, or is produced in conjunction with a course or class in which the student is enrolled.

To effectuate its provisions, educational institutions would have to adopt a written policy for student journalists to exercise their freedom of speech and the press in school-sponsored media.

Bill allows BSU, WVSU ability to offer associate degrees

Senate Bill 602 authorizes Bluefield State University and West Virginia State University, to fulfill their mission as historically black colleges and universities, to offer associate degrees on their campuses.

The institutions, however, are prohibited from beginning an associate-degree program that is duplicative of a program currently offered or planned to be offered by a community and technical college in the same consortia planning district as the institution.

The CSG South Economic Development, Transportation, and Cultural Affairs Committee is comprised of state legislators and legislative staff from the 15 CSG South member states.

Recent policy and program issues addressed by the committee include infrastructure, maritime shipping and ports as economic development, craft brewing and distilling to promote downtown revitalization and tourism, and how to invest federal infrastructure funding for generational impact.

Click here to read more from the West Virginia Press Association.

47th Day — February 26: Bills due out of committees in house of origin to ensure three full days for readings.

50th Day — March 1: Last day to consider bill on third reading in house of origin. Does not include budget or supplementary appropriation bills.

60th Day —  March 11: Adjournment at midnight.