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The Dome Report - 2020 West Virginia Legislature Update: Issue 5
February 25, 2020
The 2020 Regular Session of the West Virginia Legislature is now entering the final stretch with only a little less than two weeks left. No new bills may be introduced in either chamber (though a committee may still originate a bill) and all bills, with the exception of appropriations bills, must be out of committee and passed by their respective house of origin by February 26.
As of today, the House has introduced 1,528 bills, while the Senate introduced 853.
We will continue reporting on and tracking the progress of significant legislation during the course of the session. The remaining deadlines which impact the consideration of pending bills and their chances of success are:
  • February 26:  Last day to consider bills on third reading in house of origin ("Cross Over")
  • March 7 (midnight): Session ends.
So far, 53 bills have completed legislation.

HB 2497
Some of the more significant such bills include House Bill 2497, a bipartisan bill, which protects public employees generally by extending the statute of limitations on whistleblower complaints to two years and provides further protections to whistleblowers covered by the civil service system. Notably, the law would prohibit any adverse employment decision, such as loss of promotion or pay increase, to those employees because of their status or actions as whistleblowers.

SB 16
Additionally, Senate Bill 16, the so-called Protect Our Right to Unite Act, which provides that a public agency may not require a nonprofit entity to disclose the entity’s donor or membership information, subject to certain exceptions, though disclosure of records may be permissible when donor or membership information is redacted. The bill creates a private cause of action for an individual to enjoin unlawful disclosure of such information and to recover actual damages, attorney’s fees and costs in certain circumstances, and even treble damages in special circumstances. Oddly, this bill received unanimous support in the Senate, but was somewhat less well received in the House, though it passed with 75 yea votes there.

SB 544
Also completing legislative action was Senate Bill 544which authorizes the Board of Pharmacy, the Board of Medicine and the Board of Osteopathic Medicine to propose joint rules for legislative approval to permit a licensed pharmacist or pharmacy intern to administer immunizations in accordance with certain definitive treatment guidelines for immunizations promulgated by the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention.

Senate Joint Resolution 9 and SB 837
In a legislative session that has proven itself to be almost devoid of transformative legislation (see education bills from previous years), there are two bills under consideration that might garner that distinction and both are heavily supported by the business community.
As previously reported, Senate Joint Resolution 9 places on the ballot an amendment to the state constitution which would permit the Legislature, by enacting a separate law, to exempt some species of tangible personal property from ad valorem taxation and reduce the rate of taxation or assessment for any species of tangible personal property. The Joint Resolution was advanced out of Senate Judiciary and Finance committees and is pending final vote on the floor. 
While Joint Resolutions must pass with a two-thirds majority in each chamber, the actual vote on the amendment to the constitution needs only a simple majority of a vote of the people at a general election.
The separate law the Legislature intended to enact in the event this Joint Resolution were to pass and be adopted by the voters at the general election was originated in the Finance Committee late in the session as Senate Bill 837. This bill is one of the most sweeping tax reform bills seen in many years and includes proposed major changes in the state’s tax structure, impacting everything from property taxes to the state’s sales tax and tobacco tax. Notably, the bill would provide for the following changes which would come into effect on July 1, 2021, assuming the constitution is successfully amended: (a) A six-year phase out of the property tax on machinery, equipment and inventory (including retail inventory) and the personal property tax on cars, trucks, trailers and other “rolling stock.”; (b) the 6 percent sales tax would rise one-half of a percent to 6.5 percent; and (c) the cigarette tax would rise by 80-cents per pack, to $2.00, while taxes on other tobacco products and vaping products would also rise.
Once the phase out of the property tax is complete, the state, primarily county governments and school systems, is expected to see a loss of revenue of approximately $300 million. However, the tax increases in the bill would be expected to generate an estimated $200 million, which revenue would be used primarily to off-set those very losses. The remaining $100 million deficit would be made up by controlling spending, combined with additional revenue from economic growth.
After significant debate, Senate Bill 837 passed the Senate by a vote of 17-16, with one Senator absent. Proponents of the tax reform, however, could not be elated by their apparent victory, because the SJR 9, the proposed amendment to the constitution which is the necessary basis for Senate Bill 837, must pass by a two-thirds vote, or 23 of the 34 Senators. The Joint Resolution must pass out of the Senate by the time it adjourns on February 26. Obviously, if the Joint Resolution fails, then the entire purpose of Senate Bill 837 would be defeated for this year.

SB 275
Also, as previously reported, an intermediate court of appeals of West Virginia is one step closer to reality as Senate Bill 275 advanced out of the Senate by a mostly party line vote of 18-14, with two Senators absent. As previously reported, Senate Bill 275 would create an Intermediate Court of Appeals which would hear, by right, all appeals from Circuit Courts after June 30, 2021, and its decisions would be accorded precedential effect by the lower courts. Appeals of decisions from that court to the Supreme Court of Appeals would be by discretion only. The judges are elected to 10-year terms by the citizens in non-partisan election. The bill creates a northern and southern district within West Virginia, each with a three-judge panel to hear appeals arising out of its geographical area and is expected to cost $6.3 million a year. Additionally, the bill significantly reorganizes workers' compensation appeals by transferring all powers and duties of the current Workers' Compensation Office of Administrative Law Judges to the three-judge panel of the Workers' Compensation Board of Review. The Office of Judges would issue final decisions on all objections in its possession on or before September 30, 2021, and will then sunset on October 1, 2021. The Intermediate Court of Appeals would exercise appellate jurisdiction over all decisions issued by the Office of Judges and the Board of Review after June 30, 2021.
The bill was reported to the House where it was double-referenced to Judiciary and then Finance. Its future in the House is cloudy, at best, given its history there.

SB 339 amd SB 752
When the West Virginia Medical Cannabis Act of 2017, as created by Senate Bill 386, was enacted, the program had serious shortcomings which had to be addressed in 2019 by Senate Bill 1037. One of those shortcomings, according to medical cannabis advocates and market watchers was the restrictive manner of delivery of medical cannabis. Indeed, Senate Bill 386 only permitted pills, oils, tinctures, and creams, but did not permit leaf or plant forms, unless such were approved by the Department of Health & Human Resources in the rules it was required to promulgate to implement the program. Therefore, when medical cannabis advocates in the Legislature had under consideration those very rules, as bundled in Senate Bill 339, they successfully amended the same in committee to permit dispensaries to provide medical cannabis in dry leaf of plant form. The committee amendments were adopted by the full House by a vote of 74-23, with three absent. Since the House amended a Senate bill, it was reported back to the Senate for concurrence. The Senate, meanwhile, had under consideration Senate Bill 752 which, among other things, expanded the definition of serious medical conditions for which medical cannabis is approved to include ulcerative colitis as well as opioid use disorder. Furthermore, the bill made it easier to change the form of delivery of medical cannabis by empowering the commissioner of the Bureau of Public Health to approve such forms upon a recommendation of the advisory board. This bill is expected to pass the Senate on February 26. Its future in the House seems bright, given the action that chamber took on the rules bundle in Senate Bill 339.

HB 4543
Also of interest is House Bill 4543which advanced out of the House by a vote of 94-4. The bill, simply stated, requires insurance policies issued or renewed on or after July 1, 2020 must provide coverage for prescription insulin drugs to ensure the amount may not exceed $25 for a 30-day supply. The bill further provides a drug manufacturer, wholesaler, or pharmacy benefit manager may not pass the costs of the prescription insulin to the pharmacist or pharmacy. The bill further requires coverage for diabetes self-management education to ensure persons with diabetes are educated as to the proper self-management and treatment of their diabetes, including information on proper diets. The bill is double referenced in the Senate to Banking & Insurance, and then Health.

If you have any questions about the 2020 Session, please contact our Government Relations Practice Group.
Government Relations Alexander Macia