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Update on the West Virginia Legislature - The Final Week, Issue 9
March 04, 2019
We are entering the final week of the 60-day legislative session, which concludes at midnight on March 9.
This past Wednesday, we marked crossover day, the last day for bills to advance out of their house of origin if they are to be acted upon this session. Of the 1,818 bills introduced (1,142 in the House of Delegates and 676 in the Senate), a total of 439 crossed over and, therefore, are still alive. And yet, all of those bills must advance out of their last committee of reference by March 6 to ensure passage by March 9. In the meantime, a total of 69 bills have completed legislative action, and the Governor has signed 29 and vetoed one.
SB 451
Now that crossover day is behind us, it is clear the controversial omnibus education bill, SB 451, truly is dead as there were no attempts to resurrect it via the committee process or amendment to active bills. The debate over this bill triggered a two-day work stoppage in 54 of the 55 counties and the successful motion to postpone indefinitely in the House, which led to its demise. In its stead, however, is a teacher pay raise bill, which passed the House, but faces an uncertain future in a Senate that appears to be less inclined to grant a pay raise now.
HB 2351
The Governor avoided a show down with the Legislature and approved HB 2351, the bipartisan bill requiring healthcare insurance companies to accept electronically transmitted requests for prior authorizations, even though he vetoed a less ambitious bill last year after the legislature adjourned.
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 Legislature easily enacted SB 510 relating to the qualifications for any individual submitting a pre-suit screening certificate of merit in a medical malpractice action. The bill has not yet been presented to the Governor for approval. 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 the targeted defendants deviated from the standard of care and such deviation caused the claimant's injuries. A claimant was permitted to file his or her 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 or her 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 ("DHHR") to the Attorney General's Office, passed the Senate and is now poised to pass the House this week. The Attorney General, Patrick Morrissey, has been advocating for this transfer for a couple of years now. He argues that 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 and SB 81
The Senate narrowly passed SB 348, or the T-21 bill, last week, though it first stripped out one of the more controversial amendments adopted by its Judiciary Committee. 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 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 exemptions for active duty military personnel from the age restriction and veterans' organizations from local indoor clear air ordinances. The committee also incorporated the substance of SB 81, which made it a secondary traffic offense to smoke in a vehicle with an individual under the age of 17 present. After spirited debate on the Senate floor, the Senate narrowly voted to strip out the exemption provided to the veterans' organizations from the local indoor clean air ordinances. Even though this newly reformed T-21 effort passed the Senate, its future in the House is uncertain.
SB 487
Two other bills addressing different aspects of tort reform survived crossover day and are still active. SB 487 passed the Senate 32-2 and is pending before House Judiciary. Briefly stated, the bill provides that in a medical professional liability action alleging inappropriate staffing or supervision, a provider is accorded a conclusive presumption that the staffing level of a particular unit is appropriate upon proof of compliance with applicable state or federal laws. Moreover, upon presentation of such proof the provider also is accorded a rebuttable presumption that there was adequate supervision to prevent falls or injuries. Conversely, if there is proof the staffing level was less than that required by such law, there is a rebuttable presumption of inadequate supervision and that such was a contributory cause to the injuries alleged in the case.
HB 2670
HB 2670 is the other tort reform bill surviving crossover day. It reforms the law relating to judgments for future medical monitoring by requiring such payments be made by defendants into a fund to be drawn upon by plaintiffs, but only after they have actually obtained the surveillance screening or monitoring. The courts are also permitted to establish deadlines for such screening or monitoring with the balance of any moneys remaining being returned to the defendants. This bill passed the House and is now pending before Senate Judiciary.
HB 2538 and HB 2079
West Virginia moved several steps closer to the implementation of the Medical Cannabis Act with the continuing progress of two bills relating to the business of medical cannabis. We already have reported to you about HB 2538, the bipartisan bill that provides for the establishment of banking services for the medical cannabis industry. In short, this bill authorizes the State Treasurer to seek bids from qualified financial institutions to provide the banking services required to operate the medical cannabis permit and payment systems. This bill is expected to pass the Senate on March 5, well before the final day. Also, Senate Judiciary has under consideration HB 2079, the purpose of which is to encourage investment in the medical cannabis infrastructure in West Virginia by increasing the number of permits allowed for growers, processers and dispensaries, while also removing limitations on the vertical integration of those entities.

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