WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
ENGROSSED
Committee Substitute for House Bill 5065
By Delegates Steele, Hanshaw (Mr. Speaker), Criss,
Kelly, Rohrbach, Summers, Kirby, Nestor, Sheedy,
Cannon, and Maynor [Originating in the Committee on the Judiciary;
Reported on February 1, 2024]
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1 A BILL to amend and reenact §29-21-13a of the Code of West Virginia, 1931, as amended; to
2 amend and reenact §44-10-14 of said code; and to amend and reenact §49-4-601 of said
3 code; relating to compensation of a guardian ad litem in cases involving the West Virginia
4 Public Defender Services; relating to requirements and rates of compensation for a
5 guardian ad litem in a minor settlement proceeding; and relating to continuing education
6 requirements of Guardians Ad Litem.
Be it enacted by the Legislature of West Virginia:
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-13a. Compensation and expenses for panel attorneys.
1 (a) All panel attorneys shall maintain detailed and accurate records of the time expended
2 and expenses incurred on behalf of eligible clients, and which records are to be maintained in a
3 form that will enable the attorney to determine for any day the periods of time expended in tenths of
4 an hour on behalf of any eligible client and the total time expended in tenths of an hour on that day
5 on behalf of all eligible clients: Provided, That in no event may panel attorneys be required to
6 maintain or submit the actual start and finish times of work performed.
7 (b) Upon completion of each case, exclusive of appeal, panel attorneys shall submit to
8 Public Defender Services a voucher for services. Public Defender Services shall electronically
9 acknowledge the submission of a voucher. Claims for fees and expense reimbursements shall be
10 submitted to Public Defender Services on forms approved by the executive director. The executive
11 director shall establish guidelines for the submission of vouchers and claims for fees and expense
12 reimbursements under this section. Claims submitted more than 90 business days after the last
13 date of service shall be rejected unless, for good cause, the appointing court authorizes in writing
14 an extension.
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15 (c) Public Defender Services shall review the voucher to determine if the time and expense
16 claims are reasonable, necessary, and valid. A voucher found to be correct shall be processed and
17 payment promptly directed within 45 business days of submission of the voucher.
18 (d)(1) If Public Defender Services rejects a voucher, the attorney submitting the voucher
19 shall be notified electronically of the rejection and provided detailed reasons for the rejection within
20 30 business days of submission of the voucher. The attorney may resubmit the voucher
21 accompanied by copies of his or her records supporting the voucher and certification from the
22 appointing court that the services or expenses were performed or incurred, and were reasonable
23 and necessary, within 15 business days of receipt of notification. The executive director shall make
24 a final agency decision regarding the rejection of the voucher within 15 business days of receipt of
25 the submitted records and certification. Under no circumstances may the executive director have
26 the authority or require any panel attorney to submit privileged client information. (2) If the final
27 agency decision is to reject the voucher, Public Defender Services shall request review of the final
28 agency decision by motion to the appointing court filed within 15 business days of notice of the
29 final agency decision. After a hearing providing the attorney and Public Defender Services an
30 opportunity to be heard, the appointing court shall have final authority to resolve the issue of
31 payment and to order all remedies available under the West Virginia Rules of Civil Procedure.
32 (e) If Public Defender Services reduces the amount of compensation claimed or
33 reimbursement requested, the attorney submitting the voucher shall be notified electronically of
34 the reduction and detailed reasons for the reduction within 30 business days of the submission of
35 the voucher. The attorney may:
36 (1) Agree with the reduction and certify his or her agreement electronically to Public
37 Defender Services which shall then proceed to process payment; or
38 (2) Disagree with the reduction and request payment of the reduced amount while
39 preserving the ability to contest the reduction;
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40 (3) An attorney proceeding pursuant to this subsection shall inform Public Defender
41 Services of his or her decision by electronic means within 15 business days of receipt of the notice
42 of reduction. If there is no communication from the attorney within 15 business days of receipt of
43 the notice of reduction, then the reduction is deemed to be accepted by the attorney;
44 (4) The attorney may submit records and certification from the appointing court that the
45 services or expenses reflected in the amount reduced were performed or incurred and were
46 reasonable and necessary. The executive director shall then make a final agency decision
47 regarding the reduction within 15 business days of receipt of the submitted records and
48 certification. Under no circumstances may the executive director have the authority to require any
49 panel attorney to submit privileged client information;
50 (5) If the attorney disagrees with the final agency decision, and the attorney and the
51 executive director cannot reach an agreement regarding the reduction within 15 business days of
52 the receipt of the notice of the final agency decision, Public Defender Services shall request review
53 of the final agency decision by motion to the appointing court filed within 15 business days of
54 notice of the final agency decision. After a hearing providing the attorney and Public Defender
55 Services an opportunity to be heard, the appointing court shall have final authority to resolve the
56 issue of payment, and to order all remedies available under the West Virginia Rules of Civil
57 Procedure;
58 (6) If there is no communication from Public Defender Services within 30 business days of
59 the submission of the voucher, the voucher is deemed to have been approved for payment without
60 reduction.
61 (f) Notwithstanding any provisions of this code to the contrary, the executive director may
62 employ in-house counsel to represent Public Defender Services in hearings held pursuant to this
63 article.
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64 (g) Except for the emergency rule-making provision set forth in §29-21-6(h) (i) of this code,
65 the provisions of the amendments to this article enacted during the 2019 regular session of the
66 Legislature shall be effective July 1, 2019.
67 (h) Notwithstanding any other provision of this section to the contrary, Public Defender
68 Services may pay by direct bill, prior to the completion of the case, litigation expenses incurred by
69 attorneys appointed under this article.
70 (i) Notwithstanding any other provision of this section to the contrary, a panel attorney may
71 be compensated for services rendered and reimbursed for expenses incurred prior to the
72 completion of the case where: (1) More than six months have expired since the commencement of
73 the panel attorney's representation in the case; and (2) no prior payment of attorney fees has been
74 made to the panel attorney by Public Defender Services during the case. The executive director, in
75 his or her discretion, may authorize periodic payments where ongoing representation extends
76 beyond six months in duration. The amounts of any fees or expenses paid to the panel attorney on
77 an interim basis, when combined with any amounts paid to the panel attorney at the conclusion of
78 the case, shall not exceed the limitations on fees and expenses imposed by this section.
79 (j) In each case in which a panel attorney provides legal representation under this article,
80 and in each appeal after conviction in circuit court, the panel attorney shall be compensated at the
81 following rates for actual and necessary time expended for services performed and expenses
82 incurred subsequent to the effective date of this article:
83 (1) For attorney's work performed out of court, compensation shall be at the rate of $60 per
84 hour: Provided, That a panel attorney who serves as legal counsel or guardian ad litem for a minor
85 child in a child abuse or neglect proceeding shall be compensated for work performed out of court
86 on or after July 1, 2024, at the rate of $105 per hour.
87 Out-of-court work includes, but is not limited to, travel, interviews of clients or witnesses,
88 preparation of pleadings, and prehearing or pretrial research;
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89 (2) For attorney's work performed in court, compensation shall be at the rate of $80 per
90 hour: Provided, That a panel attorney who serves as legal counsel or guardian ad litem for a minor
91 child in a child abuse or neglect proceeding shall be compensated for work performed in court on
92 or after July 1, 2024, at the rate of $125 per hour.
93 In-court work includes, but is not limited to, multidisciplinary team meetings convened
94 pursuant to §49-4-405 of this code and, all time spent awaiting hearing or trial before a judge,
95 magistrate, special master, or other judicial officer;
96 (3) Compensation for legal services performed for a panel attorney by a paralegal out-of-
97 court is to be calculated using a rate of $20 per hour and no such compensation is to be paid for in-
98 court services performed for a panel attorney by a paralegal absent prior approval of the circuit
99 court before whom the panel attorney is appearing and subject to maximum reimbursement
100 amounts set by agency rule;
101 (4) The maximum amount of compensation for out-of-court and in-court work under this
102 subsection is as follows: For proceedings of any kind involving felonies for which a penalty of life
103 imprisonment may be imposed, the amount as the court may approve; for all other eligible
104 proceedings, $4,500 unless the court, for good cause shown, approves payment of a larger sum.
105 (k) Actual and necessary expenses incurred in providing legal representation for
106 proceedings of any kind involving felonies for which a penalty of life imprisonment may be
107 imposed, including, but not limited to, expenses for travel, transcripts, salaried or contracted
108 investigative services, and expert witnesses, shall be reimbursed in an amount as the court may
109 approve. For all other eligible proceedings, actual and necessary expenses incurred in providing
110 legal representation, including, but not limited to, expenses for travel, transcripts, salaried or
111 contracted investigative services and expert witnesses, shall be reimbursed to a maximum of
112 $2,500 unless the court, for good cause shown, approves reimbursement of a larger sum.
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113 (l) Expense vouchers shall specifically set forth the nature, amount, and purpose of
114 expenses incurred and shall provide receipts, invoices, or other documentation required by the
115 executive director and the State Auditor as follows:
116 (1) Reimbursement of expenses for production of transcripts of proceedings reported by a
117 court reporter is limited to the cost per original page and per copy page as set forth in §51-7-4 of
118 this code;
119 (2) There may be no reimbursement of expenses for or production of a transcript of a
120 preliminary hearing before a magistrate or juvenile referee, or of a magistrate court trial, where the
121 hearing or trial has also been recorded electronically in accordance with the provisions of §50-5-8
122 of this code or court rule;
123 (3) Reimbursement of the expense of an appearance fee for a court reporter who reports a
124 proceeding other than one described in subdivision (2) of this subsection is limited to $25. Where a
125 transcript of a proceeding is produced, there may be no reimbursement for the expense of any
126 appearance fee;
127 (4) Except for the appearance fees provided in this subsection, there may be no
128 reimbursement for hourly court reporters' fees or fees for other time expended by the court
129 reporter, either at the proceeding or traveling to or from the proceeding;
130 (5) Reimbursement of the cost of transcription of tapes electronically recorded during
131 preliminary hearings or magistrate court trials is limited to $1 per page;
132 (6) Reimbursement for any travel expense incurred in an eligible proceeding is limited to
133 the rates for the reimbursement of travel expenses established by rules promulgated by the
134 Governor pursuant to the provisions of §12-8-11 §12-3-11 of this code and administered by the
135 Secretary of the Department of Administration pursuant to the provisions of §5A-3-48 of this code;
136 (7) Reimbursement for investigative services is limited to a rate of $30 per hour for work
137 performed by an investigator.
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138 (m) For purposes of compensation under this section, an appeal from magistrate court to
139 circuit court, an appeal from a final order of the circuit court, or a proceeding seeking an
140 extraordinary remedy made to the Supreme Court of Appeals shall be considered a separate
141 case.
142 (n) Vouchers submitted under this section shall specifically set forth the nature of the
143 service rendered, the stage of proceeding or type of hearing involved, the date and place the
144 service was rendered, and the amount of time expended in each instance. All time claimed on the
145 vouchers shall be itemized to the nearest tenth of an hour. If the charge against the eligible client
146 for which services were rendered is one of several charges involving multiple warrants or
147 indictments, the voucher shall indicate the fact and sufficiently identify the several charges so as to
148 enable Public Defender Services to avoid a duplication of compensation for services rendered.
149 The executive director shall refuse to requisition payment for any voucher which is not in
150 conformity with the recordkeeping, compensation, or other provisions of this article or the voucher
151 guidelines established issued pursuant to this article and in such circumstance shall return the
152 voucher to the court or to the service provider for further review or correction.
153 (o) Vouchers submitted under this section shall be reimbursed within 90 days of receipt.
154 Reimbursements after 90 days shall bear interest from the 91st day at the legal rate in effect for the
155 calendar year in which payment is due.
156 (p) Vouchers submitted for fees and expenses involving child abuse and neglect cases
157 shall be processed for payment before processing vouchers submitted for all other cases.
158 (q) Upon a dismissal of or a finding of not guilty concerning a criminal charge, should the
159 charge or charges for which the indigent defendant was afforded counsel qualify for an
160 expungement of charges under §61-11-25 of this code, the defendant shall be afforded continued
161 representation upon the terms specified in this section. The Panel Attorney shall include the
162 services performed by panel attorneys in regard to an expungement on the same voucher or a
163 subsequent voucher submitted concerning the same case number as the one submitted to Public
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164 Defender Services for the underlying criminal charge or charges. The maximum amount of
165 compensation for out-of-court and in-court work under this section shall be limited to $1,000 for
166 expungement services in addition to the limits imposed on the underlying criminal charge or
167 charges, unless the court, for good cause shown, approves payment of a larger sum. The actual
168 and necessary expenses incurred in providing legal representation for expungement proceedings
169 under this section shall be reimbursed to a maximum of $500 unless the court, for good cause
170 shown, approves reimbursement of a larger sum.
171 (r) Beginning on July 1, 2024, Public Defender Services shall annually provide to the
172 Legislative Oversight Commission on Health and Human Resources, the Foster Care
173 Ombudsman, and the West Virginia Supreme Court of Appeals a report summarizing legal
174 services that are being provided by the submission of a voucher by panel attorneys serving as
175 guardians ad litem in the courts the state. Each agency report will contain a summary of the
176 following legal services being provided by panel attorneys serving as guardians ad litem:
177 (1) The average per case number of multidisciplinary team meetings attended by
178 appointed guardians ad litem from the initial appointment date until permanency for the child has
179 been achieved as reflected by court order;
180 (2) The average amount of cases an appointed panel attorney served as a guardian ad
181 litem;
182 (3) The average length of time that a child abuse or neglect proceeding lasts from the date
183 of the initial appointment of a panel guardian ad litem until an order is entered that finds that
184 permanency for the child has been achieved;
185 (4) The average number of in-person visits or conference