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Update on the West Virginia Legislature: Halfway Point - Issue 6
February 11, 2019
We are now just over halfway through the legislative session. By Friday, February 8, the 31st day of the 60 day regular session of the West Virginia Legislature, the House of Delegates had introduced 944 bills, while the Senate introduced 563. To date, 10 bills have completed legislative action, including a version of a bill vetoed last year by Governor Justice.
The dates below are the significant deadlines in this year's regular session:
  • February 12: Last day to introduce bills in the House of Delegates. This does not apply to bills originating in committee. 
  • February 18: Last day to introduce bills in the Senate.
  • 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.
We reported last week on what is proving to be the most talked about bills of this session. We have some updates.
SB 451
SB 451 is the omnibus education bill. On February 4, the bill narrowly passed the Senate along largely partisan lines by a vote of 18-16. Whereupon, it crossed over to the House and to the Education Committee, which immediately went to work stripping 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 for pupils in private schools; it also eliminated annual union dues check-off requirement; it now allows permitted pay and extracurricular activities during work stoppages; and, lastly, it removed the non-severability clause, which would have extinguished the entire bill, including the pay raises, if any of its provisions were held unconstitutional. Even still, over this past weekend, the teachers and school service personnel unions voted overwhelmingly to call a statewide work action, which may include a stoppage, if the final provisions of this bill remain unsatisfactory to them. Last year, approximately 20,000 teachers and school service personnel went on a statewide work stoppage, which lasted from February 22 to March 7, 2018.
SB 119
We also reported last week on SB 119 relating to the peer review process at healthcare facilities. The bill extends confidentiality protections to hiring, firing, and credentialing decisions made by such review boards. This bill now has the distinction of being the very first bill signed into law by Governor Justice. This is all the more remarkable since he vetoed a substantially similar bill last year after the Legislature had adjourned for the year. It should be remembered the Legislature may override a gubernatorial veto by a simple majority of both chambers.
HB 2351
Another bill that was vetoed by Governor Justice last year after the Legislature had adjourned is HB 2351, 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, we expect the two chambers to appoint a conference committee to reconcile those differences.
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 510a bill that now 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, advanced out of Senate Finance. While originally single referenced to Finance, the Committee recommended the bill first go to Judiciary before it is taken up 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 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 495
The West Virginia Senate revisits the West Virginia Consumer Credit and Protection Act in SB 495, a bill with the stated purpose of bringing that Act into conformity with the federal Fair Debt Collection Practices Act. Whenever a consumer brings an action against a creditor under the Act, the consumer may recover actual damages and a civil penalty of $1,000 per violation. Each wrongful action, be it collection letter or phone call, constitutes a single violation for the purposes of the Act and, as such, the civil penalties can reach extraordinary amounts. Among other restrictions to class action suits, the bill seeks to limit civil penalties to $1,000 per civil action, as opposed to violation of the Act. The bill is referenced to Senate Judiciary.
HB 2538
With the deadline for the implementation and effective date of July 1, 2019 for the West Virginia Medical Cannabis Act fast approaching, the House Judiciary Committee on Friday supported the passage of HB 2538 on vote of 20-3. After first being adopted by the House Banking and Insurance Committee, this bipartisan bill provides for the selection and implementation of banking services to support the provisions of the Act, while also delicately balancing the intersection between federal and state law. More specifically, the bill authorizes the Treasurer to select by competitive bid one or more financial institutions to receive, invest, and disperse the fees, penalties, and taxes authorized under the Act. The bill also authorizes the state to defend and hold harmless the Treasurer and the state officers and employees involved in cannabis-related banking services against any claims, charges, liabilities, or expenses for acting within the scope of their duties or employment. HB 2538 now goes to the floor for consideration by the full House of Delegates later this week.
HB 2481
The full House of Delegates passed HB 2481 with bipartisan support. It permits the sale of liquor on Sundays in private stores. These sales are prohibited under current law. This legislation now goes to the Senate for consideration.
HB 2519
The House Judiciary Committee will host a public hearing Monday afternoon for the "campus carry" bill. The title of HB 2519 is the Campus Self Defense Act and it would require colleges to allow those licensed to carry a concealed deadly weapon to do so on campus and in campus buildings. The bill includes some exceptions from the requirement including events in campus sports arenas with more than 1,500 seats, campus daycare centers, campus police headquarters, and private events. 
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