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Foster Care Lawsuit Dismissal Overturned By Appellate Court

The lawsuit was dismissed by the U.S. District Court of Southern West Virginia last year, deferring the case to the state courts.

A federal foster care lawsuit against West Virginia officials and the Department of Health and Human Resources reopened Monday after the previous decision to dismiss the case was overturned in an appellate court.

The case was originally filed in 2019 as a civil lawsuit on behalf of 12 children in foster care. A request was made in 2020 to expand the case to represent every child in the foster care system as part of a class action lawsuit.

Lawyers from New York City-based nonprofit A Better Childhood argued that DHHR failed to appropriately plan for the minors in its custody, citing over-reliance on shelter care and a shortage of case workers.

The lawsuit was dismissed by the U.S. District Court of Southern West Virginia last year, deferring the case to the state courts.

The U.S. Court of Appeals for the Fourth Circuit reversed the dismissal, arguing that because the plaintiffs are most interested in pursuing the case as a federal class action suit, they have a right to a decision at the federal level.

In the court’s opinion, senior judge Henry Floyd said “forcing plaintiffs to once more litigate their claims piecemeal would get federalism exactly backwards.”

The DHHR’s online Child Welfare Dashboard reports nearly 6,600 children are in foster care statewide and that 68 percent of Child Protective Service worker positions have been filled as of July 11.

Mainframe Failure Shuts Down DMV, DHHR Computer Systems

West Virginia’s Department of Motor Vehicles and the Department of Health and Human Resources were among the state government agencies affected by a computer system outage on Tuesday.

This is a developing story and will be updated.

Update, July 21, 2022 1:46 p.m.

Update, July 22, 2022 1:01 p.m.

West Virginia’s Department of Motor Vehicles and the Department of Health and Human Resources were among the state government agencies affected by a computer system outage on Tuesday.

House Technology and Infrastructure Committee Chairman Del. Daniel Linville, R-Cabell, said that two mainframe parts failed at the same time.

“The parts were not available for the both of them here in town,” Linville said. “Because of that very unfortunate set of circumstances, multiple parts had to be ordered, and get here as quickly as possible.”

Both the DMV and DHHR, which includes the WV PATH family support system, offered alternative methods to receive services.

Linville said the state owns and houses the hardware and power systems for its mainframe operations. He said if the computer system were transferred to external servers, there would be infinitely more network backup to quickly restore an outage.

“If you put that in the cloud as opposed to having it on-site, you’ve got significant redundancy all across the country and the ability to reroute that traffic without anyone noticing any impact,” Linville said.

Linville said legislators and state leaders are working on transitioning the state’s computer system to the more cost effective external servers. He said even with natural disasters, a problem like this would not take the systems down.

“The DMV actually is getting a major upgrade very soon to their services that the legislature has already appropriated money for,” Linville said.

Linville said as of Thursday morning at 10 a.m.,the parts were in, but functionality had not yet been restored and the manufacturer had to recode the system.

West Virginia Division of Motor Vehicles released a statement Thursday afternoon says customers can take advantage of two online services – vehicle registration renewal and driver’s license renewal.

DMV Commissioner Everett Frazier said the services are available at all kiosk locations across the state.

The statement said while the mainframe outage is still affecting services like title work and driver record updates, DMV is continuing to do everything possible to assist customers.

“Our offices are absolutely open to the public,” Frazier said. “We are answering questions, reviewing documents, and helping customers the best we can until the mainframe is repaired.”

In his Friday coronavirus briefing, Gov. Jim Justice said technicians with the Office of Technology continue to work on getting the mainframe fully back online.

DHHR Secretary Bill Crouch said the WV PATH app, allowing people to apply for benefits, still has problems. He said people can apply, but DHHR cannot process applications, so there will be a backlog to deal with when all systems are fully back online.

W.Va. Revenue Secretary Explains Tax Cut Proposal

Next week, in a special session called by the governor, the state legislature will look at reducing the state’s personal income tax by 10 percent overall with people in the lower rates getting slightly higher percentages.

Next week, in a special session called by Gov. Jim Justice, the West Virginia Legislature will look at reducing the state’s personal income tax by 10 percent overall with people in the lower rates getting slightly higher percentages.

News Director Eric Douglas spoke with Cabinet Secretary for the Department of Revenue Dave Hardy to get an understanding of what the cuts would mean to the state and the average person.

He explained that if you made $1 million, your reduction would be 8 percent. But at the lower level, your first $10,000 of taxable income receives a 33 percent reduction. If you make $20,000, you receive a 19 percent reduction and a 14 percent reduction for $30,000. Taxpayers won’t see 10 percent exactly until $60,000.

For a person making $50,000 a year, that means an 11 percent cut and about $240 in tax savings.

This interview has been lightly edited for clarity.

Douglas: I believe the governor said this is effectively about a $250 million a year cut.

Hardy: $254 million to be exact.

Douglas: So that’s a $254 million reduction in revenue. Where’s that money coming from?

Hardy: It’s a $254 million reduction from record breaking revenue. We had a $1.3 billion plus surplus in the fiscal year that we just finished. Our revenue growth was $1.1 billion in a 12-month period. To put that in perspective for you, that’s more than the state’s rainy day fund, and the rainy day fund took 30 years to build.

So in one year, our revenue grew in excess of the entire state rainy day fund. But we are under the ARPA guidelines — American Rescue Plan Act guidelines — that limit how many tax cuts or what type of tax cuts you can make until the end of 2024. So we did a calculation. And we recommended to the governor that $250 million roughly was the most that we felt like we could cut and return to West Virginians’ pockets.

Douglas: Those ARPA guidelines were put in place so state legislatures didn’t use the federal money to start making tax deductions.

Hardy: Well, yes, they were put there, because the way ARPA is set up, you have to grow a certain amount each year, to even be able to consider a tax cut. Well, we exceeded the growth rate spelled out in ARPA. So we were able to return part of this tax cut, or the revenue to the West Virginians.

Let me tell you, it wasn’t just federal money or anything to do with federal money that made us have such a remarkable year. Our severance tax revenues this year were 180 percent. So we had a record breaking year. And when I say a record, I mean a record by $300 or $400 million in excess. Natural gas in West Virginia is doing very well right now. And the metallurgical coal market has also increased substantially.

Douglas: So how confident are you that this will continue? If you’re making a $254 million reduction in revenue, what if five years from now we’re not bringing in those kinds of numbers, and then we’re in a hole?

Hardy: I’m confident that we can take the $254 million cut and still be healthy going forward. Again, it sounds like a tremendously large number, but when you put it in perspective of the state’s budget, the state’s general revenue this year was $6 billion. It’s $254 million out of $6 billion. And ARPA guidelines restricted us on how far we could go. But we thought it was a very safe cut to make, or we wouldn’t have recommended it to the governor.

Douglas: The governor and the legislature have been talking about reducing this and completely doing away with the personal income tax, which I’m guessing that’s about $2.5 billion.

Hardy: About $2.6 billion.

Douglas: I’m guessing you’re not anticipating that happening anytime soon.

Hardy: We go through the state’s finances month by month, and quarter by quarter and year by year. I wouldn’t anticipate making a decision on that today. I do know the governor’s number one goal is to phase out the state income tax in West Virginia. He feels like if West Virginia would do that, that we would have a much greater potential for population growth and attract people to move to our state.

Douglas: What do you anticipate happening next year? How do you expect this to affect the state?

Hardy: I think the state is going to have a very healthy fiscal year next year. I think the severance tax is going to continue to do very well. And I think West Virginia’s economy is doing well. Right now we have a record low unemployment rate. And so I think we’ll do well next year. And I think we can have a healthy budget. The West Virginia Legislature and the governor, particularly the governor, because he’s the one that proposes the budget, have kept our state budget very tightly constrained over the last five years.

If you look at our budget from 2017, and look at our budget today, I’m not going to call it a flat budget, but it has been very, very limited in growth. And mainly the only growth in the spending side has been the governor’s bill to give state employees deserved pay raises. So you look at the revenue side, but you also have to look very carefully at how tightly the expense side has been controlled by the governor and the budgets that he’s proposed to the legislature.

Douglas: So what’s the average citizen going to see?

Hardy: Here’s how it’ll work. The state tax department will issue new withholding tables, which means that during the second half of 2022, you will have less money withheld out of your paycheck. Because the state tax rates have gone down, if you are an estimate payer, and a lot of people are, they pay estimates on Sept. 15 and then they pay the next one on Jan. 15. You can adjust your estimated payments down. Then next spring, when you file your tax return in the spring of 2023, you’ll get a much larger refund. So you’ll see it in three different ways because the first six months of this year, you’ve paid under the old tax tables.

—

The state legislature will look at the question in a special session on Monday. A statement from the Democratic leadership in the legislature indicated enthusiasm for the discussion as a way to reduce the burden on working West Virginians in light of inflation.

“West Virginians need help now,” Senate Minority Leader Stephen Baldwin, D-Greenbrier, said. “As inflation has grown this year, Democrats have proposed ideas to provide the people with relief now — gas tax relief, sales tax relief, tax credits for families, workforce investments and even a tax rebate.”

House Minority Leader Doug Skaff, D-Kanawha, agreed.

“The governor announced this plan without discussion with or input from legislators — and we are the ones who have been hearing from people across the state on what would help them the most,” Skaff said. “The limited special session call also precludes us from discussing other avenues for meaningful tax relief for West Virginians. His lack of communication aside, we look forward to reviewing this plan to see how we can provide much-needed relief to the citizens of our state.”

See the proposed legislation.

See the existing tax code. Scroll down to section 4E.

Flood Protection On List Of Upcoming W.Va. Legislative Interim Meetings

With flash flooding seemingly on the rise throughout West Virginia, Randy Yohe spoke with committee member Sen. Stephen Baldwin. The Democrat and Senate Minority Leader from Greenbrier County has been at the forefront of meeting the challenges of flood prevention.

Among the meetings scheduled for next week’s legislative interim session is the Joint House and Senate Committee on Flooding.

This interview has been lightly edited for clarity.

Yohe: West Virginia leads the nation in flooding disasters over the past decade. Is that just because we’re the Mountain State and valleys come with mountains, or are we lacking in mitigation plans and efforts?

Baldwin: Both. It’s a result of our topography and geography. There are just some things we cannot change about that. But I think we can do a better job of planning and mitigating through our infrastructure. And that’s the point of all these projects, rebuilding homes, elevating them, tearing down structures that were in the floodplain or in the floodway. And then allowing folks to rebuild in a place that has stormwater systems, roadways, culverts, infrastructure, streams, creeks or there is a dam.There’s a very long list of infrastructure items we need to do to make sure it doesn’t happen as much in the future to the extent we can control it.

Yohe: That leads into the question that we often hear after flash floods and the damage and even deaths that they cause. Talking about preventive stream cleaning and mismanaged floodplain construction, but often it seems there’s little action. Do we need to legislate a dedicated act, a law that funds those flood mitigation efforts?

Baldwin: I was very encouraged to hear Senator Swope say last time that flood relief and flood mitigation needs to be one of our major infrastructure categories moving forward. I agree with him wholeheartedly, not just generally, but specifically in relation to the American Rescue Plan Act (ARPA) funds that we’ve received. Because this is going to save lives in the future and it’s going to save a significant amount of money because as you said, we deal with this all the time. If we do a better job planning on the front end, I think we’re better prepared. And the state resiliency office is in the midst right now of finalizing a new flood plan. When the June 2016 flood hit, we had a plan that was sitting on a shelf for years and wasn’t being enacted. So I think that’s the key. We’ve got to have a plan. And we’ve got to have people involved actively in executing that plan.

Yohe: Any key mitigation elements in that plan, current day technologies, like the new stream gauges and otherwise that need implementation and action right away?

Baldwin: We’ve done a little bit. That’s a good example of stream gauges. We’ve done a little bit of work on that over the last couple of years because what we had before, if you look at the old plan that was sitting on a shelf, it actually had recommendations about stream gauges. Unfortunately, they weren’t realized. So we had stream gauges on rivers, but where we are seeing flooding now are not necessarily along our major rivers, but along our streams and creeks. And so that’s where we did not have gauges. So we have added some gauges since the June 2016 flood in areas that flooded. But, we need more, badly. That’s a good example of a growing edge of infrastructure.

Yohe: You can gauge the challenge on a creek or stream. Gauging is one thing, cleaning it out is another, isn’t it?

Baldwin: It is, and that falls to the Conservation Department, which is an important partner in flood mitigation. However, that’s one of the first things that people always talk about is dredging, we need to do a better job of dredging. If you look at the data, and you look back at that previous flood mitigation plan and the plan that they’re working on now, I’m not sure that the reality matches what we think it is. I’m not sure that dredging is the silver bullet that we think it is. It’s important, but, again, I just don’t think it’s that silver bullet.

Yohe: The agenda for the Joint Legislative Committee on Flooding includes you presenting an update on ARPA funds for demolition. What’s that about?

Baldwin: We are hoping to get a pot of money to be able to do flood demolitions that the Commerce Department could not do with the funds they received from the federal government. Basically, they didn’t have enough money to do everything. So we want to propose to the legislature and the governor that we set aside some money specifically to do that from our funds.

Yohe: How do you think the national rise in climate change impacts West Virginia flooding?

Baldwin: If you look at the data, it shows that we are on the leading edge of this with West Virginia having the highest risk for flooding in the United States. And I certainly think climate change plays a part in that. We have seen more storms, with higher intensity, higher volume of rain, for example, getting nine inches in a couple of hours. So the frequency and intensity of storms has changed. And that has a huge effect on us when you consider our geography and topography. We obviously had a major flood in 2016. That affected a huge portion of the state. But we have had significant flooding events across the state since then: obviously in Huntington, in your area, in southern West Virginia, McDowell County just a couple of weeks ago. So this is continually happening. And we have got to continue to make it a priority rather than just being reactive.

Black Lung Clinics Statewide Awarded More Than $2 Million

The money comes from the U.S. Department of Health and Human Services and will go towards the state’s Black Lung and Coal Miner Clinics Program to provide financial help to the program’s health and treatment services.

Over $2 million in federal funding is going towards supporting black lung clinics across the state.

Some of the services the program offers include lung function testing and rehabilitation, chest imaging, case management and benefits counseling.

U.S. Sens. Joe Manchin and Shelley Moore Capito said in a joint statement that miners are entitled to the medical care and treatment provided by the clinics, and that they will continue to advocate for more accessible healthcare for coal miners in the Senate.

Current reports indicate that cases of black lung disease are on the increase, even with fewer miners currently working. It is also affecting younger miners. The increase is tied to smaller coal seams causing miners to work in areas with more rock, raising the concentration of silica.

The funding also comes after Congress let a higher excise tax for coal expire at the end of last year, putting the Black Lung Disability Trust Fund further in debt and in danger of insolvency.

Inaction to renew the higher rate reduced excise tax revenue on both underground and surface coal by 55 percent.

A 2018 report from the U.S. Government Accountability Office says the reduction could see the fund $15 billion in debt by 2050.

More information about the West Virginia Black Lung Clinics Program, including services available by county, is available online.

Governor Calls Legislative Special Session For Proposed Personal Income Tax Cut

Gov. Jim Justice has called a special session of the state legislature for Monday, July 25.The special session call contains one item: the governor’s proposal to reduce West Virginia’s personal income tax.

Gov. Jim Justice has called a special session of the state legislature for Monday, July 25.

The special session call contains one item: the governor’s proposal to reduce West Virginia’s personal income tax.

Under the proposal, an aggregate 10 percent tax cut would be retroactive back to January 1, 2022.

The full text of the proposed legislation can be read here.

In a press release announcing the special session, Justice reiterated his desire to completely eliminate the state’s personal income tax, and said the proposed cut would “get the ball rolling.”

Justice and proponents of personal income tax reduction in the legislature have categorized the state’s personal income tax as a burden they hope to lift from West Virginians, enticing new residents to relocate to the state in the bargain. They cite states like Florida, Texas and Tennessee as examples of growth and immigration without the imposition of a personal income tax.

A prior attempt to reduce the personal income tax during the legislature’s 2021 regular session failed after the House rejected a Senate proposal to raise other taxes to balance the state budget. Under this proposal, there are no proposed tax increases to offset the losses, estimated to be $250 million annually.