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House Judiciary OKs bill to spell out powers of foster care ombudsman, constitutional amendment to give Legislature oversight of state school board rules

MORGANTOWN — House Judiciary on Friday approved a bill fleshing out the powers of the new Foster Care Ombudsman program and a resolution for a constitutional amendment to give the legislature rulemaking oversight over the state Board of Education.

Ombudsman Pamela Woodman-Kaehler, a former Child Protective services worker in Harrison County with experience runingmedical equipment and supply companies, was appointed to her post in October. Her job was created via an amendment to a 2019 foster care bill that put foster kids’ healthcare under a managed-care program.

The bill, HB 4094, spells out several duties for her office: establish a procedure to investigate complaints regarding foster parents or kids or foster family members; review and make recommendations on foster care policies; provide assistance to kids, parents or family members on issues revealed in investigations; recommend any actions needed to ensure foster kids’ civil rights; conduct public education programs; provide advice on the foster care bill of rights (developed in a separate bill); advise the public of foster care services; consult with other agencies or states as needed.

The bill spells out how the ombudsman will investigate complaints and grants the office subpoena power.

The House Health and Human Resources Committee tweaked and approved the bill last week.

Woodman-Kaehler appeared before the committee and said she surveyed other states offices (22 have them) to learn how those offices work. So far, she’s the only person in the office but she plans to hire more. “This is far more than any one person, however motivated, can do.”

Her new hires will include some clerical staff and four associate ombudsmen to work around the state.

She doesn’t know yet, how big the workload will be, though she expects peaks and valley in the volume of complaints she’ll handle. “There’s so much we don’t know, it’s difficult to project. I’m doing the best I can.”

Delegate Brandon Steele, R-Raleigh, had concerns about bill provision that allows the ombudsman to request legal counsel and services to the office for its administrative and court proceedings.

Steele reasoned that many of the complaints filed will be against the state, and the attorney general represents the state in court. He said this poses a conflict of interest.

He proposed an amendment to eliminate that provision and empower the ombudsman to hire outside counsel or use Office of Inspector General staff counsel (the ombudsman is under the OIG’s office and independent investigatory office of the Department of Health and Human Resources).

Several members cautioned that the amendment might pose an undue burden on the ombudsman’s budget, and that the AG frequently faces this conflict and hires outside counsel in those instances – and the AG has a budget to do that.

The amendment failed and the bill passed unanimously. It goes to the House floor.

School board resolution

Article XII of the state Constitution establishes the membership and duties of the state Board of Education.

HJR 102 proposes to add to that article a sentence saying that the board may promulgate rules that would then be reviewed by the Legislature for approval, amendment or rejection. If approved by two thirds of each chamber, the proposal would go before the voters.

Education Committee attorney Melissa White told Judiciary that in 1988 made an unsuccessful attempt to exercise rulemaking authority over the board. Under current law, the board submits rules to the Legislative Oversight Commission on Education Accountability. LOCEA may make recommendations on those rules but the board if free to ignore them.

It’s different for higher education, she said. LOCEA and the full Legislature have final say on those rules.

Delegate Mike Pushkin, D-Kanawha, asked if the amendment would allow the Legislature oversight over the recent BOE policy proposal to allow county boards to eliminate a two-course path for U.S. History and offer just one course, and to eliminate a requirement for four social studies credits (reducing it to three).

White said yes. Pushkin gave it some thought but decided to oppose the resolution because the Legislature can override rules via state code changes, and because the interim Rule-Making Review Committee recently engaged in undermining some legislation via agency rule changes.

Delegate Barbara Evans Fleischauer, D-Monongalia, also opposed it because the current structure puts the state board under the executive branch and those checks and balances exist for a reason.

Delegate Geoff Foster, R-Putnam, took the opposite view. One of the rule-making comittees’ jobs is to review public comments as a means to hold agencies accountable. In this case, there is no accountaiblity because LOCEA is toothless.

Delegae Tom Bibby, R-Berkeley, added that the amendment would in fact offer the Legislature some check-and-balance over the executive branch.

The resolution was approved in a divided voice vote and goes to the full House.

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