FISCAL NOTE

Date Requested: January 14, 2016
Time Requested: 10:59 AM
Agency: Public Defender Services
CBD Number: Version: Bill Number: Resolution Number:
1106 Introduced SB99
CBD Subject: Courts


FUND(S):

0226-78800

Sources of Revenue:

General Fund

Legislation creates:

Neither Program nor Fund



Fiscal Note Summary


Effect this measure will have on costs and revenues of state government.


     Public Defender Services (“PDS” or the "agency") calculates that the increased financial liability of the State of West Virginia if the legislative proposal is enacted would be, potentially, $5,823,246.50 for each ensuing fiscal year.
    
     The proposal is an increase of thirty (30) dollars in the hourly rate of compensation for attorneys who are appointed to represent indigent parties in child abuse and neglect ("CAN")proceedings. Specifically, the rate of compensation for “attorney’s work performed out of court” in CAN proceedings would be raised from forty-five (45) dollars an hour to seventy-five (75) dollars an hour and the rate of compensation for “attorney’s work performed in court” in CAN proceedings would be raised from sixty-five (65) dollars an hour to ninety-five (95) dollars an hour.
    
     The legislation also addresses compensation for attending “multidisciplinary training.” This term is neither defined in the proposed legislation or existing statute. Two interpretations of this reference are possible.
    
     First, the proposal might be intended to provide compensation at the rate of $95 an hour to attorneys for attending the eight hours of training every two years that is required under the provisions of Section 601(g) of Article 4 of Chapter 49 of the West Virginia Code (formerly W. Va. Code §49-6-2). Currently, attendance at such sessions is not compensated by the agency and is treated in the same manner as an attorney’s general requirement of 24 hours of continuing legal education in a two year period.
    
     The second possible construction of the proposal is that attorneys would be compensated for attending “multidisciplinary team meetings” as is required by the provisions of Section 406(d)(2) of Article 4 of Chapter 49 of the West Virginia Code. Currently, the agency would compensate this legal service as “attorney work performed out of court,” which is compensated at a rate that is twenty dollars less than “attorney work performed in court.” The proposal would require future compensation for attending multidisciplinary team meetings to be at the higher rate for “attorney work performed in court.” The proposal would increase the rate of compensation for such legal services by $50 an hour, which accounts for the general increase in rates of $30 an hour and the specific elevation of this legal service from the lower rate of compensation, i.e., $75, to the higher rate of compensation, $95.
    
     The legislation also increases the maximum level of compensation for a CAN proceeding from three thousand (3,000) dollars to five thousand (5,000) dollars.



Fiscal Note Detail


Effect of Proposal Fiscal Year
2016
Increase/Decrease
(use"-")
2017
Increase/Decrease
(use"-")
Fiscal Year
(Upon Full
Implementation)
1. Estmated Total Cost 2,911,623 5,823,246 5,823,246
Personal Services 0 0 0
Current Expenses 0 0 0
Repairs and Alterations 0 0 0
Assets 0 0 0
Other 2,911,623 5,823,246 5,823,246
2. Estimated Total Revenues 0 0 0


Explanation of above estimates (including long-range effect):


     The following calculations are based on data compiled by Public Defender Services ("PDS" or the "agency") and set forth in its annual report for Fiscal Year 2015. The assumption is that, for Fiscal Year 2016, the increased costs would be one-half the costs for the ensing fiscal year.
    
     As background, the total amount paid during the Fiscal Year commencing on July 1, 2014, and ending on June 30, 2015 (“FY2015”) to attorneys as fees for services as court appointed counsel was $25,954,897.24 for 486,726.40 hours of service. See Public Defender Services Annual Report, Fiscal Year 2015, p. 5. Child abuse and neglect (“CAN”) proceedings accounted for 37.91% of the fees and 37.65% of the hours of service. See Public Defender Services Annual Report, Fiscal Year 2015, pp. 51 & 56. Specifically, the total of the fees paid for the services of attorneys appointed in CAN proceedings was, during FY2015, $8,871,695.83 for 183,270.05 hours of service. Id.
    
     Based upon the FY2015 data, the increase of thirty (30) dollars in the rates of compensation for attorneys appointed to represent parties in CAN proceedings would result in a total increase in each fiscal year in the amount of $5,498,101.50; that is, the legislation would result in an increase in the total amount paid annually to attorneys in such proceedings from $8,871,695.83 to $14,369,797.33. This represents the product of $30 (the across the board increase) times 183,270.05 (the number of hours of legal services reported in CAN proceedings). See Public Defender Services Annual Report, Fiscal Year 2015, p. 51. This would raise the overall amount paid to all panel attorneys from $25,954,897.24 to $34,826,593.07.
    
     If the provision regarding "multidisciplinary training" is intended to relate to payment for attending the mandated training required of attorneys in CAN proceedings, then the following analysis applies. The statutory requirement is a “minimum of eight hours of continuing legal education training per reporting period,” which, in the State of West Virginia, is every two years. W. Va. Code §49-4-601(g). Currently, PDS has 952 panel attorneys registered for payment. CAN proceedings represent 37.65% of the hours reported to the agency. If the percentage (37.65%) is multiplied by the number of panel attorneys (952), giving an estimate of the number of attorneys making such claims, and then multiplied by four hours (eight hours divided by two years in the reporting period) and then multiplied by the proposed rate of compensation ($95), the resulting product is $136,202.64.
    
     Additional staff time would be required to handle such payments because the payments would not be related to a specific case. If the additional staff time for handling such specific instances of compensation is presumed to be one hour for each claim, then the resulting calculation of staff time would be the percentage of hours represented by CAN proceedings (37.65%) times the number of panel attorneys (952), again giving an estimate of the number of attorneys making such claims, times $12.12 (the effective hourly rate of an accounting technician within the agency), i.e., $4,344.15.
    
     Under this possible construction of the proposal, therefore, the total increase in compensation paid and costs incurred by the agency would be $140,546.78 annually. This would bring the overall calculation for the increased costs for the legislative proposal to $5,638,648.29 in each fiscal year.
    
     If the provision regarding the "multidisciplinary training" is intend to increase the compensation for attending multidiscipllinary team meetings, then the following analysis applies.
    
     Attorneys are required to attend “multidisciplinary team meetings” by the provisions of Section 406(d)(2) of Article 4 of Chapter 49 of the West Virginia Code. Currently, the agency compensates this legal service as “attorney work performed out of court,” which is compensated at a rate that is twenty dollars less than “attorney work performed in court.” The proposal would require compensation for attending multidisciplinary team meetings at a rate equal to that for “attorney work performed in court.” Accordingly, the legislative proposal would increase the rate of compensation for such legal services by fifty dollars an hour, which accounts for the general increase in rates of $30 an hour and the specific elevation of this legal service from the lower rate of compensation, i.e., $75, to the higher rate of compensation, $95.
    
     West Virginia Interactive provided a report to PDS on the number of hours that were reported by panel attorneys in FY2015 that related to attending the multidisciplinary team meetings. The number of hours was 6502.9. The resulting increase in the annual compensation that would be paid to panel attorneys is, therefore, $325,145. This calculation is the number of hours (6502.9) multiplied by the increase in the rate of compensation for this legal service ($50).
    
     Under this possible construction of the proposal, therefore, the overall calculation for the increased costs for the legislative proposal would be $5,823,246.50 in a fiscal year.
    
     With respect to the increase in the maximum amount of compensation that is authorized to be paid in such proceedings, the agency does not assign any financial impact beyond that which has been discussed. Fees that exceed the maximum level are still required to be paid if the approving court finds good cause, which is routinely done.
    
    



Memorandum


     First, the bill makes references to the provisions of Chapter 49 before the reconfiguration of the chapter during last year's legislative session.
    
     Second, Public Defender Services is uncertain about the intent underlying the provisions relating to "multidisclipinary training." Two possible interpretations of the phrase are (i) that the provision relates to attendance at the mandated training, which is currently not compensated; or (ii) the provision relates to mandated attendance at multidisciplinary team meetings, which are not currently compensated as in-court proceedings.
    
     If the first construction is intended, this is problematic for the agency. Public Defender Services is structured to make payment for costs and expenses set forth in a voucher for a specific case. The attendance at such training would not be allocable to a specific case. Presumably, payment could be sought from the Supreme Court of Appeals of West Virginia which administers such training. Otherwise, provision would have to be made for handling such requests for payment, which would entail additional staff time. And what is the agency to do in terms of the compensation for the training if the attorney has both paying and indigent clients in CAN proceedings? The State should only pay for training related to representation of indigent parties.



    Person submitting Fiscal Note: Dana F. Eddy, Ex. Dir., Public Defender Services
    Email Address: Dana.F.Eddy@wv.gov