The 60-day Regular Session of the West Virginia Legislature convened on February 10, 2021 and, after a short week, has already advanced significant legislation addressing the impact of the COVID-19 pandemic as well as certain long-held policy priorities of the Republican super-majorities in both chambers. The Legislature also convened in a rare Saturday session during the first week.
Governor Justice delivered his fifth State of the State address on the first day of Session last week. The Governor urged the Legislature to consider a bold tax reform plan that included a phase-out of the personal income tax, a revenue source that generates more than $2 billion per fiscal year for the state budget. Governor Justice proposed a budget for FY2022 that is essentially "flat" when compared to the current FY2021 budget. The Governor asserted that flat spending is a key component of his six-year budget plan. The budget proposal does, however, reflect the effects of COVID-19 on the state’s business climate. After all the economic effects of the coronavirus pandemic, Governor Justice is proposing a stable, $4.569 billion budget.
As of the date of this week's edition, only a few of the bills requested by the Governor have been introduced in both houses. One of the notable pieces of legislation from the State of the State is Senate Bill 274, which would elevate the West Virginia Development Office and the West Virginia Tourism Office into cabinet-level agencies known as the Department of Economic Development and the Department of Tourism, respectively. The Governor has also requested two bills to create an intermediate court of appeals and legal reform as it relates to COVID-19 that will be discussed in more detail below.
During the legislative process, certain critical deadlines imposed by the Legislature impact the consideration of pending bills and their chances of success. Those dates are as follows:
- March 1, 2021: Submission of legislative Rule-Making Review bills due.
- March 16, 2021: Last day to introduce bills in the House of Delegates. This does not apply to bills originating in committee.
- March 22, 2021: Last day to introduce bills in the Senate. This does not apply to bills originating in committee.
- March 28, 2021: Bills are due out of committee in house of origin.
- March 31, 2021: Last day to consider bills on third reading in house of origin ("Cross Over").
- April 10, 2021 (midnight): Session ends.
Bills of interest so far this session include the following:
SB 4, HB 2023 and SB 275
The long-standing desire of the business community that an intermediate court of appeals be created in West Virginia is being revived again in Senate Bill 4, House Bill 2023, and in the Governor's version found in Senate Bill 275. Senate Bill 275, known as the West Virginia Appellate Reorganization Act of 2021, is under consideration this week in Senate Judiciary. As introduced, the bill would create an Intermediate Court of Appeals whose decisions would be accorded precedential effect by the lower courts. The bill establishes northern and southern districts within West Virginia, each with a three-judge panel to hear appeals arising out of their respective geographical area. The judges are to be appointed by the Governor, with the advice and consent of the Senate, to staggered terms of two, four, and six years. After expiration of their initial term, they will be subject to nonpartisan election to their full 10-year terms. After June 30, 2022, the Intermediate Court of Appeals will have original jurisdiction in cases of mandamus and prohibition and appellate jurisdiction over such matters as final judgments or orders of a circuit court in civil cases, final judgments or orders of a family court, and decisions of an agency or an administrative law judge, to name just a few. The bill significantly reorganizes workers' compensation appeals by transferring all powers and duties of the current Workers' Compensation Office of Judges to the three-judge panel of the Workers' Compensation Board of Review. The Office of Judges shall issue final decisions on remaining cases on or before September 30, 2022. The Intermediate Court of Appeals will have exclusive appellate jurisdiction over all decisions issued by the Office of Judges and the Board of Review after June 30, 2022. All three bills have been double-referenced to Judiciary and Finance. At this writing, it is unclear how much the creation of this Intermediate Court of Appeals is expected to cost.
Senate Bill 5 provides an attempt to encourage prompt settlements of disputes arising under the West Virginia Consumer Credit & Protection Act by fortifying offers of judgment, a procedure already recognized by the rules of civil procedure, with some meaningful incentives. Specifically, the bill would permit a party to make a written offer to settle a tort claim for the amount specified in the offer. If a defendant makes an offer of judgment that is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney's fees and costs from the date of the offer through the entry of judgment, if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of judgment. Conversely, if a plaintiff makes an offer of judgment that is rejected by the defendant and the plaintiff recovers a final judgment in an amount greater than 125 percent of the offer of judgment, the plaintiff is entitled to recover reasonable attorney's fees, not exceeding 25 percent of the award, and costs from the date of the offer through the entry of judgment. Evidence of an offer is not admissible except in proceedings to enforce a settlement or to determine reasonable attorney's fees and costs. This bill has been single-referenced to Judiciary.
HB 2016 and SB 277
Governor Justice and both chambers introduced bills designed to limit liability of certain persons from lawsuits arising as a result of the COVID-19 pandemic. The House introduced House Bill 2016, known as the “COVID-19 Essential Jobs Protection Act," and is expected to advance out of Judiciary and may well pass out of the House this week. That bill provides that there is no claim against any person for loss, damage, injury, or death arising from COVID-19 unless the claimant proves by clear and convincing evidence that the person proximately caused the loss, damage, injury, or death by an act or omission constituting gross negligence or willful misconduct. Moreover, the bill provides that no person may file a civil action alleging injury from exposure to COVID-19 if that person was not diagnosed with COVID-19, but alleges only exposure or potential exposure to COVID-19, was diagnosed with COVID-19 but was asymptomatic or did not experience symptoms that required hospitalization or resulted in serious illness or death. In addition, the bill provides that a property owner who permits another person onto premises shall not be held liable for damages for injuries sustained from exposure to COVID-19 unless they acted with conscious, reckless, and outrageous indifference to a substantial and unnecessary risk that a person would be exposed to COVID-19. The bill even establishes a safe harbor for compliance with regulations, executive orders, or similar guidance. Finally, the bill provides that health care providers shall not be liable for civil damages for causing or contributing to the death or injury of an individual because of the health care provider’s acts or omissions while providing health care in support of the state’s response to COVID-19. Such actions include, in part, screening, assessing, diagnosing, caring for, or treating individuals with a suspected or confirmed case of COVID-19; prescribing, administering, or dispensing a pharmaceutical for off-label use to treat patients for COVID-19; and even delaying or canceling non-urgent or elective dental, medical, or surgical procedures; or altering the diagnosis or treatment of an individual in response to any federal or state statute, regulation, order, or public health guidance.
Governor Justice's COVID-19 protection bill, known as the West Virginia COVID-19 Immunity Act, is presently pending before Senate Judiciary this week. In short, Senate Bill 277 provides immunity from civil liability for damages for an injury resulting from exposure to COVID-19 on the premises owned or managed by another person so long as that person was acting in compliance or consistent with applicable federal or state regulations, an Executive Order of the Governor, or other such guidance. Immunity does not apply to willful or wanton misconduct, reckless or intentional infliction of harm, or gross negligence and is retroactive to the date on which the state of emergency was declared in West Virginia. This bill was single-referenced to House Judiciary.
The House of Delegates Judiciary committee has advanced a bill to curtail the Governor's emergency powers in a declared state of emergency or state of preparedness. House Bill 2003 would establish a 60-day time limit for emergency declarations unless the Legislature would extend the time. A legislative extension could last 30 days, or the Legislature could remove the declaration. This bill now goes to the full House of Delegates for consideration. Any suit filed challenging an executive order issued relating to a state of preparedness or emergency is to be brought as an extraordinary writ to the West Virginia Supreme Court of Appeals.
During this state of emergency, the Justice administration was able to direct the spending priorities for the $1.25 billion in federal CARES Act funding allocated to West Virginia without regular input, let alone direct legislative oversight. Such actions have provided incentive for the House Finance Committee to quickly advance House Bill 2014, which provides that whenever federal funds in excess of $150 million are made available as a result of a state of emergency, such must first be appropriated by the Legislature. This bill is expected to pass out of the House later this week.
SB 1 and HB 2004
The pandemic fostered a robust expansion of telemedicine and the Legislature has under consideration several bills to address the changed landscape of health care delivery. Senate Bill 1 provides for parity of payment for telehealth services between a service in-person and a service provided through a telehealth platform, including such that is established and provided through audio-only means. The bill limits a patient to no more than three telemedicine consultations without an in-person primary care visit. Further, a physician shall not prescribe controlled substances listed in Schedules II though V to a patient until such time as the physician has evaluated the patient in person. This bill is pending in Senate Health and is expected to advance this week.
The House has a remarkably more direct telemedicine bill already out of committee and is expected to pass out of the House of Delegates this week. House Bill 2004 () provides simply that a health care practitioner who practices telehealth must be licensed in the state in which he or she is located and merely registered with the appropriate board in West Virginia.
Finally, as long-time readers of this publication may recall, West Virginia educators mounted statewide work stoppages in 2018 and 2019, both over reforms to the K-12 education system which included the establishment of charter schools and education vouchers. Since the Republicans can now rely upon supermajorities in both chambers, they enjoy more latitude in achieving both of those goals. The House of Delegates passed House Bill 2012 earlier today by a vote of 66-32, with two absent, and will now go to the Senate for further consideration. This bill will increase the number of charter schools from three to 10 statewide. The bill also establishes the Professional Charter School Board as an additional authorizing agency for charter schools, thus bypassing the county boards of education. That Board may also recognize virtual charter schools, though such would be limited to one statewide, while county boards may authorize no more than one virtual charter school for their county.
Also on its way to passage in the House this week is House Bill 2013, which would allow for the creation of Education Savings Accounts through the Hope Scholarship Program. This bill would allow parents to use a state-approved vendor to allocate state funds for private school or home school education, among other recognized uses. Testimony before the House Finance Committee suggested that approximately $4,624 would be available per student approved for the program and that the program could shift as much as $23.7 million in state aid to those participating in the Hope Scholarship Program.
Speaking of school work stoppages, House Education originated and advanced House Bill 2356, which provides, among other things, that the county board of education shall withhold the pay of employees for each day that the school is closed due to a work stoppage. Teachers would only be paid when the missed days are made up. In addition, the bill would prohibit a county board to use banked time to cover days missed during a strike. Finally, the bill would prohibit extracurricular activities from taking place when a school is closed because of a work stoppage.
Similarly, Senate Education has under consideration Senate Bill 11, which, among other things, codifies case law by declaring any work stoppage or strike by public employees to be unlawful. An employee is considered to be participating in a concerted work stoppage or strike purposes if, on any day during a concerted stoppage or interruption of work, the employee does not report to work and is not on leave, recognizing that leave may not be used to participate in a strike. If an employee remains employed notwithstanding participation in a work stoppage or strike, the county board of education shall withhold their prorated salary or hourly pay of each employee for each day they participate in the same. Finally, the bill prohibits a superintendent from closing a school in anticipation of or to facilitate a concerted work stoppage or strike.