From the Well | February 21, 2023

It is the informal gathering place for lobbyists, reporters, constituents and lawmakers.

Centrally situated between the chambers of the House of Delegates and Senate,

The Well is where information is often shared, alliances are formed, and deals are made.

86th West Virginia Legislature

Countdown: 18 days to go

February 21, 2023

HB2993 focuses on rural emergency hospital licensure

The Committee on Health and Human Resources on Tuesday considered and approved House Bill 2993, which changes the definition of Critical Access Hospital (CAH) and creates a Rural Emergency Hospital (REH).

Specifically, the bill changes the definition of a CAH to mean a hospital that the centers of Medicare and Medicaid services has been designated as a CAH.

For a hospital to become an REH under HB2993, it would need to be a CAH for at least one year and a CAH when it applies for licensure. The law would also require an REH to provide rural health emergency services to a staffed emergency department, to treat all patients regardless of insurance status, and to have a transfer agreement with a level-one or level-two trauma center.

An approved strike and insert reinstates part of the provision in existing code. The language allows a hospital in an urban area to be considered rural for a CAH designation if it meets certain criteria.

The Committee reported HB2993 to the full Senate with a recommendation that it be passed as amended.

Bill requires report from Bureau for Medical Services

The Committee on Health and Human Resources considered and passed Senate Bill 617, which requires the Commissioner of the Bureau for Medical Services (BMS) to produce a report by December 1, 2023, detailing the recommended reimbursement levels for home and community-based providers that serve intellectual/developmental disability patients.

Under the bill, BMS must use an independent party to develop the report, which would reflect the cost of providing services for intellectual/developmental disability patients. BMS is then required to deliver the report to the President of the Senate and Speaker of the House of Delegates.

The Committee approved a committee substitute that changes applicable parties and specifies report criteria. Specifically, it requires the Joint Committee on Government and Finance to conduct a workforce study that addresses specific factors relating to personnel pay.

The Committee is then required to recommend the hourly pay for each program category.

The Committee reported SB617 to the full Senate with the recommendation that it be passed.

SB646 creates emeritus physician license

The Committee on Health and Human Resources considered and passed Senate Bill 646, which allows the Board of Medicine to issue an emeritus physician license to retired physicians who practiced in West Virginia for at least 10 consecutive years prior to retirement. The license would not allow the holder to practice medicine. It would be valid for the rest of the holder’s life unless revoked by the Board.

The Committee approved a committee substitute that allows podiatrist physicians and assistants to be eligible for the license. Additionally, the Committee eliminated the authority to charge a fee for the license and approved language that specifies what the Board may promulgate rules for. That included the application process, the grounds of license denial, and a process for voluntary license relinquishment.

The Committee reported SB646 to the full Senate with the recommendation that it be passed.

SB676 requires report on provider reimbursements

The Committee on Health and Human Resources considered and advanced Senate Bill 676, which requires the Bureau for Medicaid Services to submit a report to the Legislature every two years that analyzes and compares the Medicaid fee for service and managed care provider reimbursement rates with the rates of PEIA, Medicare, and surrounding Medicaid fee-for-service programs.

According to Counsel, Medicaid must provide the risks and benefits of adopting specific policies, including the local and state matching dollars the programs require.

The Committee approved a committee substitute that requires that the report include the federal medical assistance percentage of surrounding states and the percentage of Medicaid reimbursement rates for surrounding states versus federal dollars.

The Committee reported SB 676 to the full Senate with the recommendation that it be passed.

Bill expands oversight of DHHR program development

The Committee approved Senate Bill 730, which allows the Legislative Oversight Commission on Health and Human Resources to review the program development of the Department of Health and Human Resources (DHHR).

SB730 expands the oversight capabilities of the Commission to review any program of the department. Language also is included that permits investigations relating to any area of concern that exists within DHHR and successor agencies.

The Committee agreed to a committee substitute that clarifies the format in which DHHR reports information in the interim period. That aims to increase transparency and allow the public to have one centralized database to search DHHR reports.

The Committee reported SB 730 to the full Senate with the recommendation that it be passed.

Committee Repeals Specific Training Requirements

The Senate Committee on Health and Human Resources favorably reported committee substitute for House Bill 3317 to the Senate floor with an amendment.

The bill generally repeals specific drug-diversion training, best-practice prescribing of controlled-substances training, and training on prescribing and administering opioid-antagonist requirements from the law while retaining the necessity of licensees to complete such training at the time of their initial licensure.

Currently, a person issued a license to practice in a health-related profession must complete drug-diversion training, best-practice prescribing of controlled substances training, and training on prescribing and administration of an opioid antagonist and other relevant training as promulgated by the respective licensing board if the person prescribes, administers, or dispenses a controlled substance.

The committee adopted an amendment to the House committee substitute that restores a requirement found in current law that a person who receives his or her initial license or certificate must complete the continuing education requirements within one year of receiving an initial license from that board.

Senate Health Creates New Exemptions to CON

The Health Committee also approved a Committee Substitute for Senate Board 613, a bill that exempts certain hospital services from certificate-of-need (CON) requirements.

“Hospital services” means inpatient services, outpatient services, emergency room services, surgical services, diagnostic and imaging services, and laboratory services provided on a hospital’s campus. A hospital’s campus includes the physical area immediately adjacent to the hospital’s main buildings, other areas, and structures that are not strictly contiguous to the main buildings located within 250 yards of the main buildings.

The committee substitute adopted by the Committee includes the provisions of Committee Substitute for House Bill 2789. That bill exempts birthing centers from CON requirements. The House of Delegates passed the bill on February 7, 2023.

The committee substitute adopted by the Health Committee also amended the “expenditure minimum” definition by increasing the cost threshold from $5 million to $100 million. Additionally, the committee substitute creates a new exemption for a physician-owned practice with at least seven locations. The new exemption authorizes the practice to purchase an MRI without needing to undergo a CON analysis so long as the MRI is used by 75% of the physician-owned practice’s patients.

Senator Eric Tarr of Putnam County asked about the potential for including an exemption for physician-owned practices that a hospital purchases. After a discussion on prior attempts to create such an exemption that the courts struck down, the Senator indicated he would forego an exemption.

Bill focuses on abuse, neglect of disabled

House Bill 3247, an amalgam of that legislation and House Bill 2427 and House Bill 3115, addresses abuse and neglect of individuals with intellectual or developmental disabilities as well as development of specialized intermediate-care facilities for individuals with these disabilities.

HB3247 includes increased inspections with heightened penalties for facilities that aren’t in compliance with standards set or to be set for these facilities with, as committee Counsel said, an emphasis on “resolving complaints”

Committee Vice Chair Heather Tully of Nicholas County asked several people to address the bill. Mark Drennan, CEO of the West Virginia Behavioral Healthcare Providers Association, said his organization is concerned some individuals with disabilities are placed in institutional settings, such as state mental health facilities or prisons, because of staffing problems.

Mr. Drennan, echoing remarks he made in the Senate, said some persons with disabilities may reside in smaller facilities. If coming into “crisis,” they may not receive proper care while frightening other residents or staff, he said.

Mr. Drennan said pay tiers could help attract and retain staff, alleviating what some committee members say is 50% staff turnover.

Cindy Beane, Commissioner for the West Virginia Bureau for Medical Services, said federal pandemic funds have been used to augment pay, but those funds expire in 2025, which she said could exacerbate staffing problems.

Mark Folio, Legal Director of Disability Rights of West Virginia, stressed current laws or regulations aren’t being enforced and that viewing the situation from an “individual” perspective may not always prove a good guide. He, too, lamented pay, saying the state can’t compete with fast-food restaurants or retail wages, meaning less skilled, less committed staff.

Delegate Daniel Linville of Cabell County told the Committee that funding is only part of the problem concerning individuals with intellectual or developmental disabilities. He said “management” can be saddled with blame in terms of not enforcing rules and regulations deemed necessary to address patient needs. He praised a proposal designed to bring county prosecuting attorneys into investigations.

Steve Wiseman of the state Developmental Disabilities Council said the approach of combining the three bills can be seen as “across the board” whereas many of the issues are more complex.

Committee discussion focused on the bill being “a start” to address issues having compounded over the years. Delegate Michael Hite of Berkeley County said staffing can be viewed as “brand new people training brand new people to get brand new people” because of pay and other considerations.

The bill goes to House Finance.

PTSD diagnoses focus of bill

House Bill 2025 expands professionals who may diagnose post-traumatic stress disorder (PTSD) to include licensed psychiatrists, licensed psychologists, and advanced practice registered nurses.

Current law also allows licensed professional counselors, licensed marriage counselors, and licensed social workers to diagnose PTSD. All individuals must be qualified to treat PTSD.

CPR Instruction Fund Advanced

House Bill 3501 creates the Cardiopulmonary Resuscitation Instruction Fund. The state Department of Education would request funds for county boards and multi-county vocational centers. Funding is through legislative appropriation.

The Committee heard no questions or discussion on the bill, which is intended to protect the solvency of the Public Employees Insurance Agency (PEIA).

Counsel said although the bill is lengthy, most of the changes were technical. She pointed out a few of the substantive changes, including a modification of the required financial plans and setting minimum levels of reimbursement at 110% of the Medicare amount for all providers rather than stating a maximum level of reimbursement.

The vested subsidy for those public employees employed before July 1, 2010, is retained. Senate Bill 520 is incorporated into the bill and would allow the employer-paid group life insurance to be maintained at $10,000 before and after age 65.

If the spouse of a public employee has insurance available through an employer, the public employee may not cover the spouse. However, the public employee can pay for the PEIA coverage for a spouse out of pocket.

For state employees, the employer will pay 80% of the premium, and the employee will pay 20%.

PEIA shall conduct an independent financial study of solvency to be presented to the Legislature on or before July 1, 2024. Amendments in the bill take effect for Plan Year 2024, which begins July 1, 2023.

Bill calls for electronic prior authorization requests

Committee Substitute for Senate Bill 267 passed the Senate Finance Committee with no discussion or questions other than Senator Mike Maroney, a Marshall County physician, thanking Chairman Eric Tarr of Putnam County for the bill.

The bill updates the law requiring prior authorizations of medical procedures for the state Public Employees Insurance Agency (PEIA) and Medicaid.

The bill requires prior authorizations for medical procedures to be submitted through an electronic portal; notifications to the health care provider confirming receipt are also to be provided electronically.

Insurers currently have seven days to respond, but the bill shortens the time to five business days. For medically serious prior authorizations, the time frame is two business days.

The time frame for peer-to-peer review of denials is shortened. The bill provides for “gold-carding” that exempts providers that have performed an average of 30 procedures a year and received a 90% final prior approval rating.

The Insurance Commission and the Inspector General are charged with oversight and collection of data for compliance.

Committee substitute for committee substitute for Senate Bill 656 requires employers to verify an employee’s immigration status with the E-Verify program.

E-Verify is the electronic verification of an individual’s employment through the federal employment authorization program, which is authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Currently, the state does not mandate the use of E-Verify.

The bill also prohibits an employer from using the wages or other compensation paid to an unauthorized alien as a deductible business expense for any state income or business tax purposes in the state. Additionally, it prohibits a state agency or political subdivision of the state from adopting a policy or practice that limits or restricts the enforcement of federal immigration laws by limiting communication between its officers and federal immigration officials in violation of 8 U.SC. § 1373 or 8 U.S.C. § 1644.

Chris Chmielenski, Vice President of Numbers USA, a nonprofit, nonpartisan immigration-reduction organization, spoke in favor of the enactment of the legislation.

The committee substitute expanded the access restrictions to anyone who is pardoned with notice served upon the prosecuting attorney. Counsel noted that current law does not address access restrictions. There are exemptions to the restriction for prosecuting attorneys, public defenders, and certain others who may need the information.

Counsel explained that criminal records are public records that can be found at the Circuit Clerk’s office. She emphasized that the bill just restricts that access, but the information still remains under seal in the Circuit Clerk’s office, although it is removed from the electronic database.

Delegate Chris Pritt of Kanawha County, lead sponsor of the bill, urged support, saying people need to be reintegrated to prevent recidivism.

“The moral argument is people deserve second chances. If they make a mistake, people should be able to recover from that,” Delegate Pritt said.

Bill adds right of survivorship to transfer of death deeds

The House Judiciary Committee passed committee Substitute for House Bill 3499 to allow joint tenancy with right of survivorship to be specified in the transfer on death deeds. Counsel explained that current law does not allow the language.

Bill addresses custodial interrogation of children

The House Judiciary Committee passed committee substitute for House Bill 2122, which would create protections for children and guidelines for law enforcement during custodial interrogations.

Counsel said the bill provides guidance on admissibility about statements from juveniles that would be governed by two situations: custodial interrogation or “in-the-moment” statements.

The guidelines are also broken down into age groups. For children under age 14, the bill states they should have the benefit of legal guardian or custodian, which can be by telephone or teleconference, and access to legal counsel. For ages 14 to 18, guardians or custodians or legal counsel are required. Counsel pointed out that the Constitution prevails if a demand for a lawyer is made.

Bill recognizes Canadian domestic violence protection

An originating bill passed by House Judiciary would authorize West Virginia law enforcement to recognize and enforce a Canadian Domestic Violence Protection Order (DVP). The bill also provides a mechanism to enforce the Canadian DVP in West Virginia Family Court.

Much of the language mirrors language that applies to other states’ DVP orders that are registered in West Virginia.

A Delegate asked, “Why Canada?” Delegate Brandon Steele of Raleigh County, lead sponsor, said that I-77, I-79, and U.S. Route 19 are major highways for people traveling from Canada. He said West Virginia law enforcement has responded to a traveler when a person named in a DVP is following.

Delegate Steele offered an amendment, stating the reasons for the DVP orders must comply with what West Virginia’s laws on domestic violence. If it’s issued on a basis that a DVP order wouldn’t be issued here, as determined by a Family Court, it cannot be enforced.

“This amendment eliminates a rogue DVP,” Delegate Steele said.

The amendment to the originating bill was adopted.

Bill allows credits to reduce probation, parole time

The House Judiciary Committee passed committee substitute for House Bill 3445, creating earned compliance credits for individuals on probation and parole to incentivize rehabilitation efforts.

Counsel explained that accruing credits would be used to reduce time on parole and probation through several specified actions, including employment, paying court costs and fines, completing treatment and rehabilitation programs, vocational training, completing a GED, and others.

The original bill did not allow the credits for felony crimes of violence, but Delegate Joey Garcia of Marion County offered an amendment to make credits available for all persons on parole and probation.

“Anything we can do to encourage and provide goals, we should do, despite the type of crime,” said Delegate Garcia, emphasizing that the people are already out and on parole or probation. The amendment was adopted 10 to 9.

Delegate Chris Pritt of Kanawha County offered an amendment that was adopted to give some credit to people for programs they might already have completed prior to parole or probation, saying, “We need to encourage people to get their lives back on track.”

Stephanie Bond, Director of Probation Services for the Supreme Court, was asked whether the bill gave the Court any concerns. She responded that it would be a challenge for its IT Department to add all of the information to its database and make sure everything is tracked accordingly.

One other concern, according to Ms. Bond, was whether credits would be mandatory or would judges have discretion.

House Bill 3113 requires high school students to complete a one-half credit course in personal finance during their 11th or 12th grade year. The course is required for graduation.

The state Board of Education is to provide implementation guidance to county boards and other education agencies regarding curriculum, content standards, eligible teacher certification(s), and graduation requirements.

HB3113 is effective beginning with the students entering ninth grade the 2024-25 school year. The subject is taught now, although it is not required by law.

Bill supplements PROMISE Scholarship program

Senate Bill 1 requires the Higher Education Policy Commission to create a PROMISE Plus Program, which supplements the PROMISE Scholarship for individuals meeting more rigorous standards.

The total of both scholarships received is equal to the actual cost of tuition. According to Committee counsel, the PROMISE Plus Program won’t affect the “basic” PROMISE Scholarship.

Senator Bob Plymale of Wayne County said students’ receipts of PROMISE Scholarships are declining because more rigorous standards curtail participation. Award recipients must agree to repay the amount of the grants awarded equivalent to the number of years the scholarship was received if residing out of state. The HEPC determines PROMISE Plus Program rules.

Bill permits teaching of ‘Intelligent Design’

Senate Bill 619 allows public school teachers, including teachers in public charter schools, to teach “Intelligent Design as a theory of how the universe and/or humanity came to exist.”

Senate Committee Chair Amy Grady of Mason County introduced a Hurricane High School student who advocated for the legislation. The student argued teaching Intelligent Design is voluntary and doesn’t amount to instruction in religious beliefs. The student based the argument on a federal judge’s ruling in a Pennsylvania case that, he said, determined required teaching of Intelligent Design is unconstitutional.

Eli Brumfield, a representative of the American Civil Liberties Union, argued, however, that Intelligent Design amounts to teaching concepts of faith whether required or elective.

Bill requires audit of WVSSAC

Senate Bill 667 requires the Legislative Auditor to conduct periodic performance audits of the state’s Secondary Schools Activities Commission (WVSSAC), including examination of “all records and accounts of the Commission and to examine the personnel of the commission.”

The initial performance audit is to be completed by December 1, 2023. The legislative auditor’s report is to be provided to the Legislature’s Joint Committee on Government and Finance and the Legislative Oversight Commission on Education Accountability (LOCEA).

SB667 cites a recent federal court case regarding transgender girls’ participation in athletics in which the WVSSAC argued it wasn’t a “state actor” subject to scrutiny under either the Equal Protection Clause or Title IX. Federal Judge Thomas R. Goodwin rejected that argument.

Bill establishes bonus for unused personal leave

Senate Bill 638 allows county boards to reimburse school employees for up to 10 unused personal leave days. The bonus is optional in an amount equal to the average daily rate of pay of a substitute in the school district in the employee’s “position.”

The bonus can’t be used for extended insurance coverage or increased retirement benefits.

Senator Jeffries appeared on MetroNews’ ”Talkline” Monday, saying he is both humbled and honored to be the new chairman of the committee. Jeffries said the state has seen great economic development the past few years. Now, there’s a “hot zone” list of eight more companies he said have interest in the state.

He said those eight companies represent a potential of $10 billion of investments and about 5,500 new jobs.

One of the companies hails from Israel He said its specific project would bring in around $200 million, creating an abundance of jobs.

“That’s what we’re looking for, we’re looking for jobs,” Senator Jeffries said “It’ll be tremendous for our economy.”

The Chairman is confident the companies that have shown the most interest in building in the state will open the door for other businesses to consider an eventual move.

Click here to read more from WVMetroNews.

41st Day — February 20: Last day to introduce bills in the Senate. Senate Rule 14 does not apply to originating or supplementary appropriation bills and does not apply to Senate or House resolutions or concurrent resolutions.

47th Day — February 26: Bills due out of committees in house of origin to ensure three full days for readings.

50th Day — March 1: Last day to consider bill on third reading in house of origin. Does not include budget or supplementary appropriation bills.

60th Day —  March 11: Adjournment at midnight.