Date Requested: February 24, 2015
Time Requested: 01:29 PM
Agency: Public Defender Services
CBD Number: Version: Bill Number: Resolution Number:
2394 Introduced HB2955
CBD Subject: Courts


FUND(S):

0226

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.


     With respect to the provision of legal services to indigent criminal defendants or other persons whose liberty interests are at stake, Section 13a of Article 21 of Chapter 29 of the West Virginia Code, W. Va. Code §29-21-13a, sets the rate of compensation for “panel attorneys” in cases to which the attorneys have been appointed by the court. The statute also sets the amount to be reimbursed for investigative services required by panel attorneys.
    
     Presently, the statute sets the rate of compensation for “attorney’s work performed out of court” at forty-five (45) dollars per hour. The legislation would increase the rate of compensation to one hundred and forty-five (145) dollars per hour.
    
     Presently the statute sets the rate of compensation for “attorney’s work performed in court” at the rate of sixty-five (65) dollars per hour. The legislation would increase the rate of compensation to one hundred and ninety-five (195) dollars per hour.
    
     Presently, the statute limits the “reimbursement for investigate services” to thirty (30) dollars per hour. The legislation would double the limit on the allowable reimbursement to sixty (60) dollars per hour.
    
     Also, the legislation provides that if more than sixty (60) percent of an attorney’s time is “spent” on “court appointed cases,” the attorney is to be deemed eligible to enroll in the health coverage plans provided by the Public Employees Insurance Agency. No such provision is contained in the existing statute.
    



Fiscal Note Detail


Effect of Proposal Fiscal Year
2015
Increase/Decrease
(use"-")
2016
Increase/Decrease
(use"-")
Fiscal Year
(Upon Full
Implementation)
1. Estmated Total Cost 0 53,915,310 53,915,310
Personal Services 0 0 0
Current Expenses 0 53,915,310 53,915,310
Repairs and Alterations 0 0 0
Assets 0 0 0
Other 0 0 0
2. Estimated Total Revenues 0 0 0


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


     In the fiscal year commencing on July 1, 2013, and ending on June 30, 2014 (“FY2014”), Public Defender Services (“PDS”) processed payments to panel attorneys for their services in court-appointed cases in the total amount of $23,016,716.42. Public Defender Services Annual Report Fiscal Year 2013 – 2014 (“2014 Annual Report”), p. 46. An additional amount of $2,514,051.70 was paid as reimbursement of expenses incurred by the panel attorneys. The total amount paid to court-appointed counsel in FY 2014 was, therefore, $25,530,768.12. The estimated total cost of the legislation is more than twice this amount.
    
     In FY2014, payments were made to attorneys for 407,813.8 hours of “work performed out of court.” 2014 Annual Report, p. 46. The legislation increases the rate of compensation for such hours of service by one hundred (100) dollars per hour. Accordingly, the increased amount of payments based on the FY2014 figures would be $40,781,380.
    
     In FY2014, payments were made to attorneys for 71,770.1 hours of “work performed in court.” 2014 Annual Report, p. 46. The legislation increases the rate of compensation for such hours of service by one hundred and thirty (130) dollars per hour. Accordingly, the increased amount of payments based on the FY2014 figures would be $9,330,113.
    
     In FY2014, payments in the total amount of $533,651.33 were made for reimbursement of the costs of investigative services that were required by panel attorneys. 2014 Annual Report, p. 71. The legislation doubles the permitted rate of compensation for such services. Accordingly, the increased amount of payments based on the FY2014 figures would be $533,651.33.
    
     With respect to the cost of the coverage by the Public Employees Insurance Agency (“PEIA”) for attorneys who “spent” more than sixty (60) percent of their time working on court-appointed cases, the agency does not have the information needed to determine the number of attorneys who would qualify for such coverage and the agency does not have the underwriting information for each qualifying attorney that would be needed to determine the premiums that the state would be obligated to pay.
    
     Notwithstanding this lack of information, an estimate of $3,270,166 was derived by the following methodology. If 1800 hours is considered to be the average number of hours “spent” by an attorney on legal services, then sixty (60) percent of that time would be 1080 hours. The total hours of service reported by attorneys in FY2014 was 479,583.9. 2014 Annual Report, p. 46. If the total hours are divided by 1080 hours, then the hours would represent the services of 444 attorneys who could meet the sixty (60) percent threshold. In actuality, payments were made to 751 attorneys in FY2014.
    
     The agency made grants to public defender corporations in the total amount of $1,397,507 for the employer’s portion of the PEIA premiums for 190 enrollees, which included 118 attorneys.
    
     If this is considered a comparable cost, then the number of qualifying panel attorneys would be 2.34 times the number of the employees of public defender corporations who are covered. The estimate of $3,270,166 represents the product of 2.34 times $1,397,507.
    
     The total estimated cost of the legislation is, therefore, $53,915,310.
    
     The total budget for payments to, or benefits for,court appointed counsel would increase as a result of the legislation from the current amount of $25,530,768 to the amount of $79,446,078.
    
    
    
    



Memorandum


     The determination of which attorneys spend more than sixty (60) percent of their time on court-appointed cases would be problematic. The legislation provides that the agency would promulgate rules to determine the eligibility of attorneys for the insurance coverage offered by the Public Employees Insurance Agency. However, the agency would be challenged to determine the means for ascertaining what an attorney’s legal practice is and to verify what amount of a time an attorney is “spending” on private or non-criminal defense matters. The reality is that the agency would have to devote a full time employee to this effort, but would have to rely ultimately on the veracity of the attorneys' reporting in order to determine the eligibility. The cost of an additional employee was not included in the total estimated cost.
    
     The legislation also increases the maximum amount of the compensation in cases that do not involve the possibility of a life sentence from three thousand (3,000) dollars to six thousand (6,000) dollars. Because this limit can be exceeded if the court determines that good cause exists, the limit is not deemed to be a meaningful constraint on the amount of compensation to be paid. Accordingly, the increased limit was not considered in the estimation of the total cost of the legislation.
    



    Person submitting Fiscal Note: Dana F. Eddy
    Email Address: Dana.F.Eddy@wv.gov