As you know, the 2020 Regular Session of the West Virginia Legislature commenced on January 8. As of this writing, the House has introduced 903 bills, while the Senate has introduced 467. We will be reporting on and tracking the progress of significant legislation during the course of the Session. During the legislative process, certain critical deadlines are imposed by the Legislature that impact the consideration of pending bills and their chances of success. Those dates are:
- February 11: Last day to introduce bills in the House of Delegates. This does not apply to bills originating in committee.
- February 17: Last day to introduce bills in the Senate. This does not apply to bills originating in committee.
- February 23: Bills are due out of committee in house of origin.
- February 26: Last day to consider bills on third reading in house of origin ("Cross Over").
- March 7 (midnight): Session ends.
STATE OF THE STATE ADDRESS AND FISCAL BUDGET PROPOSAL
Governor Jim Justice delivered his fourth State of the State address to open the Legislative Session, and he submitted what has been called by some observers as a "flat" budget proposal for Fiscal Year 2021. With little in the way of new major spending initiatives compared to prior years, the Governor has proposed a unique way to utilize Medicaid surplus dollars to pay for these new initiatives or invest in existing programs. Some of the programs touted in the address include increased funding for meals for seniors, weekend backpacks for hungry students, tourism efforts, a new Narcotics Intelligence Unit, eliminating the intellectual/developmental disability wait list, and increasing funding for Child Protective Services at the Department of Health and Human Resources.
According to officials from the Department of Revenue, the Governor’s $4.585 billion general revenue budget for Fiscal Year 2021 will be roughly $108 million less than the current fiscal year. This has been primarily driven by a slowdown in energy markets, particularly lower natural gas prices and a drop-off in coal exports. Governor Justice also signaled his support for eliminating the business and inventory tax on machinery and equipment - House Joint Resolution 17 - as well as for creating an intermediate court of appeals (discussed below).
2020 LEGISLATIVE SESSION KICKOFF
At this early stage in the Session, there has been a lot of interest in the judiciary as well as healthcare. Some of those bills are discussed below.
Intermediate Court of Appeals
It has been a long-standing desire of the business community that an intermediate court of appeals be created in West Virginia. Indeed, West Virginia seems out of step with the rest of the country as 41 other states have such a judicial institution. This year, it's obvious the Senate has taken up that challenge and, undaunted by past failed attempts, has introduced no less than four bills relating to the creation of an Intermediate Court of Appeals:
While there are minor differences between the bills, they all share some distinct features. Broadly stated, all would create an Intermediate Court of Appeals that would hear, by right, all appeals from Circuit Courts after June 30, 2021. Appeals from decisions from that court to the Supreme Court of Appeals is by discretion only. Decisions of the Intermediate Court are accorded precedential effect by the lower courts. Judges are not elected, but instead appointed by the Governor, with the advice and consent of the Senate. One bill would establish a northern and southern district within West Virginia, each with a three-judge panel to hear appeals arising out of its geographical area. The other bills would establish a three-judge court to hear appeals from throughout the state. All of the bills are double referenced to the Judiciary, then the Finance Committee. In remarks to the business community, the Senate leadership has declared its intention to advance one of these bills.
Since West Virginia instituted non-partisan elections to the Supreme Court, there have been two election cycles whereby the winning candidate did not obtain a majority of the votes. To address the concern that a highly divided election field could yield a winner with effectively only minority support, the House introduced HB 2008
, which provides that when no candidate receives at least 40 percent of votes cast in the nonpartisan election in a division for Justice of the Supreme Court of Appeals, a runoff election between the two highest candidates is to be held concurrent with the general election. This bill was amended in the House Judiciary Committee to apply to the 2020 election when two positions on the five-person court are up for election. This bill is now pending in House Finance.
Perhaps the most significant news in healthcare is Governor Justice's declaration of support for the West Virginia Healthcare Continuity Act, an initiative spear-headed by Attorney General Patrick Morrisey. The provisions of Senate Bill 284
would only come into effect in the event that Patient Protection and Affordable Care Act ("Obamacare") were declared unconstitutional by the federal courts where a challenge by West Virginia and 17 other Republican-led states is pending. The bill would establish a State Commission on Healthcare Continuity, consisting of the Insurance Commissioner, the Secretary of the Department of Health and Human Resources, and the Secretary of the Department of Revenue. One major objective of the Commission would be to identify state or federal sources of funds to replicate the disallowed tax credits under Obamacare. The Commission would oversee the creation of a Patient Protection Pool to provide payment to health insurers for claims for services provided to those individuals with higher healthcare costs.
Importantly, from a political standpoint, the bill would prohibit insurance providers from excluding coverage of pre-existing conditions—one of the most popular aspects of Obamacare. The provisions of this bill would apply to all health insurance policies delivered, executed, amended, or renewed after June 30 of the calendar year in which the law would become effective.
The Legislature also is expected to continue modernizing healthcare infrastructure. West Virginia is in the minority of states wherein a provider must first obtain a certificate of need in order to establish, expand, or take over a healthcare facility. Moreover, if a provider wishes to offer particular diagnostic services, or purchase certain equipment to support such services, a certificate of need would be first required. These certificates were issued by the Healthcare Authority in a process that sometimes invited procedural challenges by competing healthcare providers. For the past several years, the West Virginia Legislature has demonstrated a strong desire to curtail the jurisdiction of the Healthcare Authority, if not eliminate it completely, in the name of free market competition. This year is no different as the House Health Committee has under consideration HB 4108,
which exempts from certificate of need review certain transactions such as the development of skilled nursing facilities, the establishment of community mental health and intellectual disability facilities, the provision of behavioral health facilities and services, and the establishment of facilities for the treatment of Neonatal Abstinence Syndrome, to name just a few exemptions. This bill is single referenced to House Health.
Finally, despite the nearly annual outbreak of measles and other preventable communicable diseases throughout the United States, there are no fewer than five bills pending that would eliminate, or otherwise, severely limit the scope of West Virginia's compulsory immunization laws:
Given the number of bills pending, and the political pressure to act upon one or more, it is highly likely that one form or another of these anti-vaccination bills could be expected to be taken up by the House Health Committee.
If you have any questions about the 2020 Session, please contact our Government Relations Practice Group