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Update on the West Virginia Legislature - Crossover Day, Issue 8
February 25, 2019
We are now approaching crossover day, February 27, the date that bills must pass their house of origin in order to be considered by the other house during the remainder of the legislative session. As a practical matter, if a bill has not completed committee work by yesterday, it is extremely unlikely to make it over by the crossover deadline.
Today, February 25, is the 48th day of the 60-day regular session. The House has introduced 1,140 bills, while the Senate introduced 673. A total of 31 bills have completed legislative action and the Governor has signed 10, while vetoing only one. 
As for the one bill vetoed thus far, SB 272, updating the code sections governing the Legislature's Commission on Special Investigations, both the House of Delegates and Senate have repassed this legislation with corrections to meet the original objections of the Governor.
The dates below mark the significant deadlines in this year's regular session:
  • 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.
SB 451
We have been reporting extensively on the fate of SB 451, the omnibus education bill. As you may recall from our last report, this bill was amended again by the Senate, which action triggered a two day work stoppage in 54 of the 55 counties and a successful motion to postpone indefinitely in the House. With crossover day looming, neither chamber originated any bill that could have revived some of the far-reaching reforms attempted by SB 451. Thus, this issue is now truly dead. Instead, there is a teacher pay raise bill pending which we discuss in greater detail below.
HB 2351
With only one delegate opposing the adoption of the conference committee report, HB 2351, the bipartisan bill requiring healthcare insurance companies to accept electronically transmitted requests for prior authorizations, passed both chambers and now is heading to the Governor. Recall the Governor vetoed a less ambitious bill last year after the legislature adjourned. This year, it appears the bill will be presented to him while it is still in session and he will have five days, Sundays excluded, to act upon the bill. A simple majority is all that is required to override a veto.
The bill, briefly stated, in addition to other requirements, mandates 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 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 510
The Senate easily advanced SB 510, relating to the qualifications for any individual submitting a pre-suit screening certificate of merit in a medical malpractice action. The bill was single referenced to House Judiciary where it is being taken up this week and is expected to pass the House. The purpose of the bill is briefly stated. 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. This affidavit must be executed by a healthcare professional who was required to provide the state that the targeted defendants deviated from the standard of care and such deviation caused the claimant's injuries. A claimant was permitted to file his civil action only if the claim could not be settled. The person executing the screening certificate of merit must provide an opinion to a reasonable degree of medical probability, be licensed by a state board, engaged in the medical field relating to the claimant's injuries or conditions, and devote 60 percent of his professional time to the active clinical practice of medicine or the teaching of medicine in such field. 
SB 318
SB 318, a bill to transfer the Medicaid Fraud Unit from the Department of Health & Human Resources to the Attorney General's Office is expected to advance out of the Senate this week. The Attorney General, Patrick Morrissey, has been advocating for this transfer for a couple of years now. He argues West Virginia is an outlier state because that unit is not under the control of the Attorney General, as it is almost everywhere else in the country. The total state and federal Medicaid spending in West Virginia is just over $3.7 billion, making it the second largest line item in the state budget. For this reason, among others, he argues a dedicated professional staff of attorneys and investigators, as he commands, should be in charge of protecting the fund. Moreover, he believes he can better leverage the resources of other attorneys general across the country to pursue larger and more complex fraud cases that cross state lines.
SB 348
The Senate also is expected to advance SB 348, or the T-21 bill, this week. As introduced, the bill would have raised the legal age for the purchase of tobacco, as well as e-cigarette, products to 21. The T-21 movement is a part of a national campaign to curb smoking in young adults and has been adopted in a half dozen states so far. The Senate Judiciary Committee did not accept the bill as introduced and, instead, carved out an exemption for active duty military personnel. Moreover, the Committee exempted veterans' organizations from indoor smoking ordinances promulgated by local boards of health. Interestingly, in what appears to be a compromise of sorts, the bill made it a secondary traffic offense to smoke in a vehicle with an individual under the age of 17 present. This last addition to the bill comes from SB 81, a bill that was already pending before the Judiciary Committee. Even if this newly reformed T-21 effort passes the Senate, its future in the House is uncertain.
HB 2934
Unlike past legislative sessions, gaming bills have fared better thus far this year. One example is HB 2934, the West Virginia Lottery Interactive Wagering Act, which, if enacted, would permit the state’s four licensed racetracks and the Greenbrier Resort to offer interactive wagering games online. This legislation passed the House of Delegates last week with broad, bipartisan support.
HB 2901
The second bill that also has bipartisan support after passing the House of Delegates with a comfortable margin is HB 2901. This legislation allows for the current licensees of the state's racetrack casinos to establish a satellite, or secondary, location within the same county without a requirement for a second county-wide referendum. This legislation, as debated on the House floor, ostensibly would help Wheeling Island Racetrack and Casino weather its persistent flooding issues at the current location, as well as diminish the impact of traffic around the casino due to the planned construction projects on Interstate 70 in Ohio County.
HB 2730
The House of Delegates overwhelmingly passed a "clean" pay raise bill last week that includes teachers, school service workers and state police and does not include any of the controversial education reform elements of SB 451. This legislation passed 89 to 8 with three delegates absent and was referred to the Senate Education and Finance committees for further consideration.
HB 3145
Speaking of SB 451, the House of Delegates Education Committee passed one of the more favorable, non-controversial aspects of the failed education reform bill in a separate piece of legislation last week. HB 3145 deals with the Underwood-Smith scholarship program and is on the fast track to pass the House by Wednesday’s crossover day deadline.
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. If you have any questions, do not hesitate to contact one of our professionals.
Government Relations Alexander Macia