Update on the West Virginia Legislature - Issue 5

by Spilman Thomas & Battle, PLLC
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The dates below are the significant deadlines in this year's regular session:

  • February 12: Last day to introduce bills in the House of Delegates. This does not apply to bills originating in committee. 
  • February 18: Last day to introduce bills in the Senate
  • February 24: Bills are due out of committee in house of origin.
  • February 27: Last day to consider bills on third reading in house of origin.
  • March 9 (midnight): Session ends.

By Friday, February 1, the 24th day of the 60-day regular session of the West Virginia Legislature, the House of Delegates had introduced 820 bills, while the Senate introduced 511. To date, only a handful of bills have completed legislative action. One of those bills that did pass the Legislature this week was a version of a bill vetoed last year by Governor Justice.
 
SB 451
Few bills this session have captured as much attention, or seemed as portentous, as SB 451, the omnibus education bill originating in Senate Education and which narrowly cleared the Senate on February 4 by a vote of 18-16. The very fact this bill comprehensively addressed many aspects of K-12 public education from providing for teacher pay raises, permitting charter schools, creating education savings accounts for pupils in private schools, increasing class sizes, and permitting counties to pay higher salaries to teachers in critical subject matters, among other things, is what make this bill so controversial. To its critics, led by the two teacher unions, the bill was introduced in retaliation for last year's statewide work stoppage. Indeed, they claim the more controversial components, such as charter schools and education savings accounts, would never become law if they weren't tethered to the pay raises. The proponents of the bill, on the other hand, see the bill as the best hope to move up teacher salaries while also diversifying educational options for counties as well as parents. The bill was not taken up by Senate Finance, as originally referenced, but instead considered by the Senate sitting as a committee of the whole. This controversial move ensured passage out of Senate Finance where it likely would have died. Nevertheless, despite its passage out of the Senate, its future remains cloudy. Governor Justice has vowed to veto the bill in its present form, while the House has not demonstrated enthusiasm for its more controversial components. Lastly, the threat of another work stoppage by teachers cannot be discounted.
 
SB 119
One of bills to complete legislative action this week was SB 119, which passed the House by a vote of 88-18-1 (it had passed the Senate by a margin of 25-6-3). As reported before, a substantially similar version of this bill was vetoed last year by Governor Justice. Simply stated, the purpose of this bill is to provide that documents prepared by or on behalf of a healthcare provider for the purpose of credentialing or reviewing health care providers are confidential and privileged and not subject to discovery in a civil action or administrative proceeding. In addition to providing a detailed list of the documents protected from discovery, it also extends those protections to hiring, firing, and credentialing decisions made by the review board. Once the bill is presented to Governor Justice, he will have five days, excluding intervening Sundays, to act on it. To be sure, the Legislature may override a gubernatorial veto by a simple majority of both chambers. As of this writing, SB 119 has not yet been presented to Governor Justice.
 
HB 2351
One bill that is expected to complete legislative action this week is HB 2351, a bipartisan bill requiring healthcare insurance companies to accept electronically transmitted requests for prior authorizations. The bill passed out of the Senate by a vote of 33-0-1. Since the Senate amended the House bill, the House must now concur in or reject those amendments. In the event the amendments are rejected, differences in the two versions of HB 2351 will have to be reconciled by the two chambers. We expect the House to decide this week how to address the Senate's amendments to its bill. 
 
The amended bill, in addition to other requirements, mandates that insurance companies respond to such requests within seven days for non-urgent requests and two days where a delay could jeopardize life or health of the patient. Insurance companies and MCOs are required to develop the necessary forms and portals and shall accept one prior authorization for an episode of care, which is defined as a specific medical problem, condition, or specific illness being managed across a continuum of care and includes tests and procedures initially requested, excluding out of network care. Unrelated additional testing or procedures will require a separate prior authorization. Finally, where a healthcare practitioner has performed an average of 30 procedures per year and in a six-month time period has received a 100 percent prior approval rating, the insurer shall not require the submission of a prior authorization for that procedure for the next six months. This exemption is subject to review and auditing. 
 
SB 4
The Senate debated and ultimately passed Senate Bill 4, a bill that would make the Municipal Home Rule Pilot program a permanent fixture on the West Virginia municipal landscape. Under existing law, the pilot program was to sunset on June 30, 2019 without further legislative action. The Senate adopted a few amendments. One, by Sen. Corey Palumbo, (D-Kanawha), strikes a provision that would have allowed voters to call for a referendum within 45 days of any home rule law passed by a city council. The other bipartisan amendment strikes a provision requiring voters to approve any bond sales that would use the local sales tax for revenue. SB 4 continues all existing plans and ordinances home rule cities have in place, but requires updates to any sections affected by the new law. Beginning July 1, 2019, the Home Rule Board will accept up to four applications per year from Class IV municipalities – population under 2,000 – that wish to join. Also effective July 1, 2019, all participants must pay a $2,000 annual assessment into a Home Rule Board Operations Fund to operation and administration of the board until the fund reaches $200,000.
 
SB 266
The Senate Judiciary Committee amended SB 266, the Governor's bill creating an intermediate court of appeals. As we reported here before, this bill would create an intermediate court of appeals that would hear appeals from all administrative, civil, and workers' compensation cases. As introduced, the bill would have divided the state into two districts, each with a three judge panel to hear cases, though the Senate Judiciary will reduce that to one single district. In addition to other amendments to the Governor's bill, the Judiciary Committee eliminated the requirement that these judges provide geographical diversity to the one remaining panel. The bill is pending before Senate Finance for further consideration. According to the accompanying fiscal note, the annual cost to the state for the creation of this new branch in the court system is expected to be $7.6 million, though that amount is likely lower now with the elimination of one of the three judge panels. The bill is supported by the West Virginia Chamber and the defense bar, while opposed by the plaintiff's trial bar.
 
SB 510
Since 2001, in order to commence a medical malpractice case against a healthcare professional or facility, a claimant must first send a pre-suit notice of claim together with a screening certificate of merit to the targeted defendants. The screening certificate of merit was an affidavit executed by a healthcare professional who was required to provide the state that the targeted defendants deviated from the standard of care and that such deviation caused the claimants injuries. A claimant was permitted to file his civil action only if the claim could not be settled. Now, after almost 18 years of practical experience in the operation of this pre-suit requirement, a coalition of healthcare professional societies and representatives of facilities are supporting a modernization of the terms of the screening certificate. Notably, SB 510 requires a person issuing a screening certificate must be licensed by a state board, engaged in the medical field relating to the claimant's injuries or conditions, and devotes 60 percent of his professional time to the active clinical practice of medicine or the teaching of medicine in such field. The bill also requires a claimant to name all individuals purportedly liable for the injuries and to provide a list of medical records reviewed. The bill was single referenced to Senate Finance.
 
HB 2538
The promise of legalization of medical cannabis in West Virginia stemming from the 2017 authorizing legislation took one step closer to becoming reality when HB 2538 advanced out of House Banking & Insurance. The purpose of this bipartisan bill is to provide for the selection and implementation of banking services to support the West Virginia Medical Cannabis Act SB 386. Specifically, the bill authorizes the Treasurer to select by competitive bid one or more financial institutions to receive, invest, and disperse the fees, penalties and taxes authorized under the Act. The bill also authorizes the state to defend and hold harmless the Treasurer and the state officers and employees involved in cannabis-related banking services against any claims, charges, liabilities or expenses for acting within the scope of their duties or employment. The bill will now be considered by House Judiciary. 
 
HB 2010
In the House of Delegates, members passed House Bill 2010 last week by a vote of 67-32, with one absent. The legislation will allow managed care organizations to work with the Department of Health and Human Resources on managing the foster care system, which is charged with caring for over 6,700 children. The bill was first referred to the Senate Committee on Health and Human Resources.
 
The government relations team at Spilman will be tracking and reporting further on these and other bills and major developments during the legislative session that may impact your business interests in West Virginia. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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