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Update on the West Virginia Legislature - Major Deadlines: Last Day to Introduce Bills in This Session, Issue 7
February 19, 2019
We have now passed the first two major deadlines for this legislative session - the last days to introduce bills in both the House and Senate. While bills may still be originated in committee, the other deadlines still apply, thus lowering their probability of success. 

By February 18, the 41st day of the 60 day regular session, the House of Delegates had introduced 1,126 bills, while the Senate introduced 663. A total of 19 bills have completed legislative action and the Governor has signed four and vetoed one.

Almost one year to the day of the first statewide teacher and school service personnel work stoppage since 1990, these same groups left their classrooms again in protest of the latest Senate amendments to Senate Bill 451. 54 of 55 county school systems shut down today, with Putnam County schools being the exception. With the Capitol filled with striking teachers, the House of Delegates adopted a motion to postpone indefinitely further consideration of Senate Bill 451 for the remainder of the session.
The dates below mark the significant deadlines in this year's regular session:
  • February 12 and 18: Last days to introduce bills in the House of Delegates and the Senate. This does not apply to bills originating in committee. 
  • 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 on SB 451, the omnibus education bill. While the bill earlier this month narrowly passed the Senate along largely partisan lines by a vote of 18-16, the House stripped out some of its most controversial aspects. For instance, the Committee capped the number of charter schools to two statewide in a pilot program; it eliminated education savings accounts; it also eliminated annual union dues check-off requirement; it permitted pay and extracurricular activities during work stoppages; and, lastly, removed the non-severability clause, which would have extinguished the entire bill, including the pay raises, if any of its provisions were held unconstitutional. These revisions were sufficient to garner support from the Democrats and the bill passed by a margin of 71-29. Yet, the Senate took up the amended bill and sought to amend the same by increasing the number of charter schools to seven and reestablishing limited educational savings accounts, among other changes. While the Senate was still debating these amendments, the teachers and school service personnel unions announced a statewide work stoppage. Last year, approximately 20,000 teachers and school service personnel went on a statewide work stoppage, which lasted from February 22 to March 7. This year, 54 of the 55 school systems shut down on February 19, in response to the call for a work stoppage. Teachers again flooded the Capitol building, filling the galleries, while the House took up the Senate amendments. However, before the House could vote on the Senate amendments, a motion to postpone indefinitely was made and succeeded by a vote of 53-45 with two delegates absent. This parliamentary move essentially kills consideration of SB 451 for the remainder of the session.
HB 2351       
We have been reporting on the progress of another bill that was vetoed by Governor Justice last year after the legislature had adjourned. HB 2351 is a bipartisan bill requiring healthcare insurance companies to accept electronically transmitted requests for prior authorizations. We reported last week this bill passed both chambers unanimously, a feat accomplished last year as well. Since there are differences between the two versions of the bill, the two chambers appointed a conference committee to reconcile those differences. That conference committee is expected to resolve the differences and the bill up for passage in both chambers later this week.
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
SB 510, the bill that makes the statutory qualifications for expert testimony in medical malpractice cases the same as those for any individual submitting a pre-suit screening certificate of merit, has now advanced out of Senate Judiciary and is on its first reading on the Senate floor. 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 claimants 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 117
SB 117 provides incentives to promote consolidation of local government. This bill passed the Senate unanimously on February 19. The problem addressed by this bill is succinctly stated. West Virginia has only 1.8 million people distributed over 55 counties, each with its own independent government and board of education, though more than half of those counties have fewer than 25,000 citizens. Further, West Virginia has 232 municipalities, though not one has more than 50,000 residents. In 2006, the West Virginia Legislature recognized the problems facing a state with declining population, a challenged tax base, and numerous political jurisdictions and enacted the Consolidated Local Government Act in order to promote improved efficiencies and economies of scale through consolidation. Yet, there have been no consolidations. Therefore, this bill provides certain incentives to those entities that merge into consolidated governments including preference for road construction or repair projects; the ability to impose a 1 percent sales tax; free audits by the state Auditor’s Office to recommend additional efficiencies; and, for counties that consolidate, a 10 percent discount on Regional Jail Authority bills for 10 years. A similar bill advanced out of the Senate in 2018, but did not get through the House.
SB 266
We previously reported on the progress of SB 266, the Governor's bill creating an intermediate court of appeals. This bill passed out of the Senate by the slimmest margin possible, 17-16, with one Senator absent. Concisely stated, this bill would create an Intermediate Court of Appeals that would hear appeals from all administrative, civil, and workers' compensation cases. The Intermediate Court of Appeals is composed of a three judge panel to hear cases. Appeals from decisions of that Court to the Supreme Court would be by petition, instead of a right. The bill guarantees to all appellants the right to be heard, at both the Intermediate and Supreme Court, whichever is appropriate, and a written decision on the merits. Finally, according to the accompanying fiscal note, this new court is expected to cost $4 million in the first year and $3.3 million a year thereafter. The bill is supported by the West Virginia Chamber and the defense bar, while opposed by the plaintiff's trial bar. The bill's fate in the House of Delegates is unknown.
HB 2538
The House of Delegates passed HB 2538 last week and it is now pending in the Senate Judiciary Committee. This bipartisan bill provides for the selection and implementation of banking services to support the West Virginia Medical Cannabis Act and looks to be on track for passage by Day 60.

HB 2481
The Senate has passed HB 2481, which removes the restriction on Sunday alcohol sales, except for Easter Sunday and Sundays on which Christmas falls. The Senate adopted an amendment to the legislation and if the House concurs in the Senate amendment, it will go to Governor Justice for consideration.

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