The 60-day Regular Session of the West Virginia Legislature convened on February 10, 2021 and, after 12 days that included a rare Saturday session on February 13, 2021, both chambers have advanced significant legislation addressing the impact of the COVID-19 pandemic as well as certain long-held policy priorities of the Republican super-majorities.
During the legislative process there are certain critical deadlines imposed by the Legislature that impact the consideration of pending bills and their chances of success. Those remaining 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.
Governor Justice's proposed amendments to the West Virginia Economic Development Authority's broadband loan insurance fund have already passed the Senate and are on their way to the House of Delegates. SB 295
, among other things, codifies the provisions of the Governor's 2020 executive order that will position the state and its broadband providers well for participation in the Federal Communication Commission's Rural Digital Opportunity Fund ("RDOF") programs.
SB 373 and HB 2026
Speaker Hanshaw and President Blair also introduced legislation earlier Monday, by request of Governor Justice, to make the State of West Virginia more attractive to companies that employ and allow employees to work remotely. SB 373
and HB 2026
both have been assigned to the respective finance committees.
Other bills of interest that have advanced so far this session include the following.
SB 4 and HB 2023
Of the several bills establishing an Intermediate Court of Appeals, Senate Bill 4
and House Bill 2023
it is the Governor's version that has advanced out of Senate Judiciary and Finance Committees and is expected to pass the full Senate this week.
Senate Bill 275
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. The Committees amended the original bill in certain key areas. For instance, after expiration of their initial terms, the judges will run for full 12-year terms in non-partisan elections. Furthermore, the Intermediate Court of Appeals will not have any original jurisdiction. After June 30, 2022, it will have 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. Appeals from its decisions to the Supreme Court of Appeals will be taken by discretion. The bill also 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. The Intermediate Court of Appeals is expected to cost almost $12 million per year to operate. As before, the plaintiffs' trial bar opposed the bill, while business interests restated their long time support. Last year, the bill failed in the House of Delegates by a vote of 56 to 44. With more than 30 new members, and a Republican supermajority, Senate Bill 275 will arrive in a vastly different House of Delegates.
HB 2016, SB 3 and SB 277
While there are several bills pending designed to limit liability of certain persons from lawsuits arising as a result of the COVID-19 pandemic, for House Bill 2016
and Senate Bill 3
, the Senate amended the Governor's bill to provide the most comprehensive limitation on liability and passed it last week. Now, pending before the House Judiciary Committee is Senate Bill 277
, known as the West Virginia COVID-19 Immunity Act, which provides simply that there is no claim against any person, business, entity, health care facility or provider, first responder, or volunteer for any loss, including death, arising from COVID-19, COVID-19 care, or impacted care. "Impacted care” is defined as care offered, delayed, or otherwise adversely affected at a health care facility or to a health care provider during the COVID-19 emergency that impacted the facility’s or provider’s response to the COVID-19 emergency. In addition, the bill provides immunity to any person that designs, manufactures, sells, distributes, or donates a product in response to COVID-19 that is utilized by any person, government entity, business entity, health care facility or provider, first responder, or volunteer resulting from the product’s manufacturing or design, or a failure to provide proper instructions or sufficient warnings. Such limitations, however, would not apply if that person had actual knowledge of a defect or acted with actual malice. The provisions of this bill were made effective retroactively from January 1, 2020, and apply to any cause of action accruing on or after that date.
With no votes in opposition, the House of Delegates 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. The bill was amended to clarify that even during a state of emergency, the Governor does not have the right to close or dictate the religious practices in houses of worship. 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. This bill was communicated to the Senate and referred first to Senate Government Organization and then to Judiciary.
The House also advanced House Bill 2014,
a companion bill to House Bill 2003, without any opposition. House Bill 2014 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. During this state of emergency, the Justice administration directing 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. This bill was communicated to the Senate where it is now pending in Senate Finance.
SB 1 and HB 2004
In order to improve the delivery of health care, the Legislature has under consideration several bills to address the changed landscape of healthcare 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. With an established patient, the bill requires an in-person appointment with the health care practitioner within 12 months of using the initial telemedicine service. Further, the bill prohibits the prescription of Schedule II controlled substances, but permits those listed in Schedules III through V under certain circumstances, such as when the practitioner has an existing physician-patient relationship of at least one year. The bill advanced out of Senate Health and is expected to pass the Senate 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.
The Republican supermajority took its first steps in fundamentally reforming the K-12 educational system this week when the House of Delegates advanced House Bill 2012.
The bill increases the number of charter schools from three to 10 statewide and establishes the Professional Charter School Board as an additional authorizing agency for charter schools, thus by-passing the county boards of education. That Board also may recognize virtual charter schools, though such would be limited to one statewide. The recognition of charter schools was one of the reasons teachers and school service personnel held statewide work stoppages in 2018 and 2019. Yet, this time around, the bill passed with little fanfare and is now pending in Senate Education.
The House approved the creation of Education Savings Accounts in House Bill 2013,
but, in a rare move, had to recall the bill and recommit it to House Finance after leadership became aware that certain amendments dramatically increased its cost. As introduced, House Bill 2013
would have created Education Savings Accounts through the Hope Scholarship Program. This bill would allow students who transferred out of public schools to attend private or religious schools, or were home schooled, to receive state funds for their education. Testimony before the House Finance Committee suggested that approximately $4,624 would be available per eligible student and that the program could shift as much as $23.7 million in state aid to those students. However, the bill was amended on the floor to broaden the eligibility to anyone who applied after July 1, 2026 and thus increased its potential cost to more than $100 million. As a result, the House recalled the bill from the Senate and recommitted it to its Finance Committee for additional study.
Speaking of school work stoppages, the Senate advanced 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. The bill now goes to the House of Delegates.
Relatedly, the House Education Committee originated and advanced House Bill 2536,
which provides, among other things, that the county board of education shall withhold the pay of the 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. The bill is expected to pass out of the House this week.
In yet another example that elections have consequences, the House of Delegates advanced House Bill 2009,
which limits the use of wages and agency shop fees for political activities and prohibits employers from withholding or diverting any portion of an employee’s wages or salary for political activities without express, written annual authorization. This prohibition against withholding or diverting wages for political activities applies to any agreement entered into, modified, renewed or extended on or after July 1, 2017.
HB 2019 and SB 274
One of the notable policy priorities of the Justice administration expressed in the State of the State was the elevation of 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 House of Delegates advanced its version of that bill in House Bill 2019
. While the Senate's version of that bill, Senate Bill 274
, is pending in Government Organization, while the House version was referenced to Senate Finance.
Finally, despite having been placed on the Senate Judiciary agenda twice, Senate Bill 5
has not yet been taken up by the Committee. This bill is meant 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, it would permit a party to make a written offer to settle a tort claim for the amount specified in the offer. If a defendant's offer 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 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 attorneys' 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 attorneys' fees and costs.
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