The West Virginia Legislature adjourned its 60-day Regular Session sine die on March 7, 2020. By the time the clock struck midnight, 356 bills ultimately completed the legislative process and were sent to Governor Justice for his approval. Under the West Virginia Constitution, the Governor had until midnight on March 25, 2020 to take action on those bills. The Governor signed all but five of the bills passed during the regular session.
Before we discuss the results of the recently completed session, it is important to note the State of West Virginia has been under a State of Emergency declaration since March 16, 2020 due to the worldwide outbreak of the novel coronavirus ("COVID-19"). Governor Justice has issued subsequent executive orders that caused for the closure of schools, gyms, bars, restaurants, casinos, hair salons, and other non-essential businesses. The Governor also has lifted certain long-standing restrictions on the scope of practice and licensing requirements for nurses, physicians, and physician assistants to increasing access to healthcare during this crisis. For more information on the response to COVID-19 and other resources, please visit our COVID-19 Task Force section on our website.
In consultation with Secretary of State Mac Warner and Attorney General Patrick Morrisey, Governor Justice issued an order moving the state's primary election from May 12, 2020 to June 9, 2020. Secretary of State Warner's office has provided more information on this change and the corresponding rule changes here. As a result of the ongoing State of Emergency, the Secretary of State has issued an Emergency Rule to ensure voters will be able to safely participate in voting using the absentee ballot process.
WV State Budget for FY2021 Senate Bill 150
Among the hundreds of bills signed into law Governor Justice also signed Senate Bill 150, the budget bill for FY2021 that begins on July 1, 2020, without any line-item vetoes. The general revenue budget is just under $4.6 billion. While there were no pay raises adopted this year, SB 150 creates a Medicaid reserve fund that sets aside $150 million for future Medicaid expenses. The budget bills also appropriate almost $17 million for foster care, $4 million for tourism marketing and $2 million focused on COVID-19 preparedness, a number that is almost certain to increase over time.
Turning to the outcome of the legislative session, here are some of the bills that Governor Justice approved:
House Bill 4001 creates the West Virginia Impact Fund, a sovereign fund designed to attract large economic development projects to West Virginia. House Bill 4001 creates a vehicle to utilize money from corporations, private investors, and other investment accounts to bring diversified economic opportunities and other initiatives to the state. This legislation was a high priority of Speaker of the House Roger Hanshaw. The bill was effective from its passage on March 5, 2020.
Senate Bill 339 is a legislative rules bill for DHHR that provides the regulatory framework for the implementation of the medical cannabis program in West Virginia. The rules were amended to permit dispensaries to provide medical cannabis in dry leaf or plant form. This bill is effective from its passage on March 5, 2020.
Senate Bill 583 creates a utility solar energy program in West Virginia that would permit the state’s two electric power generators, FirstEnergy and American Electric Power, to install up to 200 megawatts of solar power in 50 megawatt increments. The legislation also permits the utilities to achieve accelerated surcharge cost recovery for these solar investments, but for the larger industrial electricity users, the accelerated cost recovery is limited to no more than $1,000 per month. This bill becomes effective June 3, 2020.
The purpose of House Bill 4474 is to create a regulatory framework for the operation and use of peer-to-peer car sharing programs. Such framework will include, among other requirements, the exemption of the peer-to-peer car sharing program and the shared vehicle owner from vicarious liability; the authorization of a motor vehicle insurer of the shared vehicle to seek contribution against the motor vehicle insurer of the peer-to-peer car sharing program in certain circumstances; the requirement that peer-to-peer car sharing programs obtain an insurable interest in a shared vehicle during the car sharing period; driver’s license verification and data retention; and, the establishment of certain registration, notification, and benchmarks for safety for automobiles used in peer-to-peer car sharing programs. The bill is effective June 5, 2020.
House Bill 4543 requires insurance policies to provide coverage for prescription insulin drugs and ensure the amount may not exceed $100 for a 30-day supply of a covered prescription insulin, regardless of the quantity or type of prescription insulin used to fill the covered person’s prescription needs. Furthermore, the bill requires insurers to include coverage for diabetes self-management education to ensure persons with diabetes are educated in the proper self-management and treatment of their diabetes, including information on proper diets. The bill is effective from its passage on March 7, 2020.
House Bill 4361 updates and strengthens the insurance fraud provisions of West Virginia Code by adding certain new provisions from the Model Act on Insurance Fraud Prevention promoted by the National Association of Insurance Commissioners. The bill defines "fraudulent insurance act" as, among other things, presenting to or by an insurer, a reinsurer, broker, or its agent, false information as part of, in support of, or concerning a material fact relating to an application for the issuance or renewal of an insurance policy; the rating of an insurance policy; a claim for payment or benefit pursuant to an insurance policy; or, the financial condition of an insurer. The bill allows the Insurance Commissioner to accept proceeds from court ordered forfeiture proceedings into a special revenue fund subject to legislative appropriation. The bill also requires persons engaged in the business of insurance to report to the Insurance Commissioner suspected insurance law violations. Importantly, the bill strengthens the power of the insurance fraud unit by permitting it to administer oaths, execute search and arrest warrants, make arrests upon probable cause without a warrant, and participate in the prosecution of workers’ compensation fraud. Persons convicted of a felony involving dishonesty, breach of trust, or a law reasonably related to the business of insurance are disqualified from participating in the business of insurance. Finally, the bill requires insurance companies to have antifraud initiatives that may include the engagement of fraud investigators or the submission of an antifraud plan to the Commissioner. Such plans will be deemed privileged and confidential and exempt from public disclosure, nor are they subject to discovery or subpoena in a civil or criminal action. The Insurance Commissioner may propose legislative rules setting forth requirements or standards for the submission of insurer antifraud plans. The provisions of the bill become effective June 5, 2020.
House Bill 4573 relates to Medicaid subrogation liens of the Department of Health and Human Resources and was intended to incentivize Medicaid members to prosecute lawsuits against liable third parties.The bill established a priority right to DHHR for subrogation payments and required litigamts to obtain DHHR authorization before finalizing a settlement in certain circumstances. Furthermore, the bill set forth the procedure and allocated the burden of proof in those instances when DHHR rejects a settlement allocation, while exempting from this process final subrogation liens of less than $1,500. This bill had a number of objectionable provisions that were opposed by certain members of the insurance industry and even the plaintiff's bar. However, DHHR made this legislation a priority and maintained if this legislation were not adopted the state risked losing millions of dollars. Notwithstanding DHHR's stated position, this bill is one of the five bills vetoed by Governor Justice.
Some of the notable bills that failed to be enacted this year include:
Senate Bill 275 would have created an Intermediate Court of Appeals. We reported previously on the contents of the bill as it made its way through the legislative process. In the end, the House of Delegates significantly altered the bill by pushing back the start date to January 2023 and increasing the jurisdiction of the proposed intermediate appellate court by adding criminal and child welfare cases to its docket. The bill ultimately died on a vote of 56-44 as Democrats were able to win over a solid number of "small government" Republicans from the more rural counties to provide the extra measure to defeat this legislation.
The purpose of Senate Bill 752 was to expand the definition of "serious medical conditions" for which medical cannabis is approved to include certain conditions like ulcerative colitis as well as opioid use disorder. The bill also would have waived educational requirements for physicians, among other changes to the Medical Cannabis Act of 2017. Despite overwhelming support in the Senate and solid bipartisan support in the House, the bill was placed on the inactive agenda at the end of the session where it died.
We previously have reported on Senate Bill 284 which ostensibly provided continued coverage for certain parts of the Affordable Care Act if that federal law were to be struck down by the federal courts. Of most particular concern to lawmakers were those sections ensuring healthcare coverage plans meet certain minimum standards, remain affordable, and that coverage to individuals were not denied on the basis of preexisting conditions. Despite earlier success, questions remained as to the scope of such protections as well as the funding mechanism for a patient protection risk pool sharing program established by the bill. Ultimately, those questions overwhelmed its supporters and the bill was defeated in House Health Committee in the waning days of the legislative session.
Senate Bill 762 prohibited insurers from switching a prescription for a biological drug product for non-medical reasons if the covered person is medically stable on a the biological product as determined by the prescribing provider and the prescribing provider continued to prescribe the biological product for the medical condition. While the bill provided certain exemptions to insurers, it was generally opposed by the industry. Thus, despite relatively easy passage in the Senate, and even out of the House Health Committee, that opposition, together with questions over the cost of its implementation, sealed its fate in House Finance as the bill was never taken up by that committee.
Senate Bill 710 would have created a pilot program authorizing the use of audio-only telemedicine technologies to be administered by the Public Employees Insurance Agency for the benefit of their members. In addition to other requirements, the use of audio-only telemedicine technology would have been authorized if the physician determines that, based upon the patient’s presentation, the technology is sufficient to provide necessary information to provide medical services to the patient and that in the physician’s medical opinion such technology meets the standard of care. While the bill received substantial support in the Senate, and was poised to pass the House, it was pulled from the active agenda just before the end of the session and died.
The need to increase access to healthcare, not to mention preserving the safety of healthcare practitioners during the coronavirus pandemic, has caused the Governor to issue Executive Order No. 10-20, which lifted certain restrictions on the practice of telemedicine, including the requirement that it be performed by video-only technology.
The purpose of House Bill 2008 was to ensure that where no candidate for Supreme Court justice received more than 40 percent of the votes cast, a run-off election would be held between the top two vote getters. If this bill had been in place for the last two Supreme Court elections, there would have been a run-off in each. The bill would have applied to the 2020 election where three of the five seats on the Supreme Court are on the ballot.
The purpose of House Bill 2088 was to permit evidence in a tort case of the use or failure of use of a safety belt on the issues of negligence, contributory negligence, comparative negligence, and failure to mitigate damages. Under its provisions, among other things, evidence would be permitted as to the causal relationship between the violation and the injuries or death alleged if certain conditions were satisfied such as the claimant was ejected from a vehicle equipped with a safety belt and the medical expenses exceeded $50,000. Defendants alleging a violation of seatbelt requirement could prove the available seatbelt would have reduced the alleged injuries or prevented death. Despite the efforts of certain stakeholders interested in the passage of the bill, amendments adopted by the Senate Judiciary Committee caused support for the bill to diminish late in the session and, by action of the Rules Committee, the bill did not make it a final vote on the Senate floor before midnight on March 7, 2020.