From the Well | 2020 Wrap-up

March 11, 2020

West Virginia Capitol Update

Recap of the 2020 Session

When all was said and done, the Senate introduced 856 bills, and passed 258. The House introduced 1,533 bills and passed 243.

When each side finished at midnight Saturday, 355 bills completed legislation, 187 of them started in the House and 168 started in the Senate. As of Monday, the Governor had signed 54. The Governor will have 15 days (excluding Sundays) to act on the remaining 301 bills. If he does not sign or veto a bill, it will become law at the end of the 15 days.

The initiative that started out as the #1 priority of the Senate saw its demise on February 25th. The initiative was originally the elimination of manufacturing inventory, machinery, & equipment tax, contained in a resolution to amend the constitution, SJR 8. Eliminating that portion of personal property taxation has been discussed and studied for years, at least since the 1999 Tax Reform Study, but proponents have never been able to answer how the revenue would be replaced. A new concept was introduced in SJR 9, which went far beyond personal property taxation for manufacturing and gave the legislature authority to do the following:

·     exempt one or more species of tangible personal property from taxation

·     authorize the Legislature to reduce the rate of taxation or assessment for one or more species of tangible personal property

·     authorize different statewide rates of taxation, statewide rates of assessment, and statewide methods of valuation for different species of tangible personal property

·     clarify that the Legislature and levying bodies remain subject to constitutional limits on rate of taxation and assessment

·     authorizing the Legislature to classify property as real or personal for taxation purposes.

The issue became more about individual car taxes than business or manufacturing taxes, and hours were spent on this new and unstudied concept that took approximately $300 million in revenue that goes directly to counties & schools and ended the constitutional concept of uniformity of taxation.

The new resolution had an accompanying bill to raise replacement revenue, SB 837. In that bill, the sales tax was increased by .5% and large tax increases were applied to tobacco and vaping products. Even with these increases, replacement revenue was estimated to be at least $100 million short. The bill actually passed the Senate on a vote of 17-16 with one absent, but it was contingent upon passage of SJR 9, which the following day failed to reach the required 2/3 for a constitutional amendment. Counties were vocal in their opposition, particularly since they would become subject to the state budget to give them the replacement revenue every year. Senator Blair, Chair of Finance, promised that he was “married” to this bill and was not getting “divorced.” In other words, it is very likely the bill will return next year, possibly with more research and more reliable calculations for lost & replacement revenue.

Another major priority of the legislative leadership was the creation of an Intermediate Court of Appeals. The bill got farther this year than it has in the past three sessions. Ultimately, though, it was killed and then killed again.

As it passed the Senate, SB 275 included only civil cases, family court cases, and workers compensation cases. It did away with the Workers Compensation Hearing Examiners under the Insurance Commission. The House of Delegates added several amendments, both in committee and on the floor and changed the effective date from 2022 to 2023. In committee, the House added criminal cases to the work of the ICA. On the floor, amendments were approved to add abuse & neglect cases and remove standing locations for the northern & southern districts, requiring the ICA to meet in different cities around the state.

Due to the changes in caseload, the new fiscal note was described by Chairman Shott as being “up in the air.” The Supreme Court’s annual original estimate grew from $7.2 million to $8.5 million; the Attorney General’s office reported it would need an additional $2 million and Public Defenders Services estimated a need for $1.2 million.

The significantly revised bill was up for passage on the last Friday of the session and, after a lengthy floor discussion, failed by a vote of 58 nays, 42 yeas. Then Minority Leader Tim Miley made a strategic procedural move, asking the body to reconsider the bill. In order to ask for reconsideration, a delegate must have voted with the prevailing side, which in this case was a nay vote. Miley stated that he wanted to put an end to the bullying, arm-twisting, and pressure that the delegates had undergone. A reconsideration can be requested only once and must be within 24 hours of the vote. Miley’s request for a reconsideration vote was granted and failed, but it had the desired effect of killing any chance that the bill could be resurrected before midnight Saturday

Meanwhile, on the House side, Speaker Hanshaw’s bill HB4001, which creates the Mountaineer Impact Fund, and provides a vehicle for out of state and even international entities to invest in development, infrastructure and other projects in the state. In addition to establishing a fund within the State’s Treasury Department, it creates an Investment Board and the Mountaineer Impact Office to coordinate project investments. The bill received bi-partisan support in both the House and the Senate.

In addition, the House’s unanimously supported Foster Care bill passed both houses with nearly $17 million in funding to provide increases in reimbursements to foster and kinship families and providers.

HB 4092 went through several iterations between House & Senate, with funding removed and then added back by the Senate, but it ultimately passed on the last day of the session. During its passage, there was a rare moment where the staff attorney who worked on it got a shout out from a Delegate on the floor, thanking Charlie Roskovensky for his dedicated work on the bill. Immediately following, Speaker Hanshaw said, “This couldn’t be a worse time to announce this, but counsel has let us know that the amendment is flawed and can’t be voted on yet. We will recess to fix the amendment.” The corrected bill was approved later in the day and completed legislative action.

A bill anticipated to make it easier to implement the 2017 medical cannabis law failed to pass. House Rules Committee voted 12-8 to pull SB 752 from the active House Calendar and “park it” on the Rules calendar, which, on the last day of session, is most often a death sentence. The bill passed with broad bipartisan support in 2017 but has issues that are hampering implementation.

The West Virginia Critical Infrastructure Protection Act protects critical infrastructure in West Virginia by creating a new criminal penalty for anyone who willfully trespasses or enters property containing a critical infrastructure facility without permission and damages, vandalizes, or tampers with equipment. Critical infrastructure projects in this bill include energy facilities, railroads, military facilities, ports. 

The Downstream Natural Gas Manufacturing Investment Tax Credit Act of 2020, was passed to encourage the development of downstream manufacturing in West Virginia. Eligible taxpayers would be able to take a credit against the portion of state income taxes that come from investment in a new or expanded downstream natural gas manufacturing facility that creates new jobs. 

The Natural Gas Liquids Economic Development Act, provides tax credits related to the transportation and storage of natural gas liquids.

Finally, SB802 permits direct service to large volume users of natural as when the natural gas used is produced in West Virginia. Users do not need approval of the PSC to access direct service, but must meet a minimum threshold and are required to inform the local utility of its new source.

SB579, changes the wireless enhanced 911 fee, and establishes a separate public safety, wireless tower fee.

SB649 permits 911 centers to use 911 fees they receive to negotiate mobile phone contracts.

HB4015 relates to broadband and vertical real estate for wireless technologies to extend service farther into the state.

HB4619 relates to the approval of plans proposed by electric utilities to install middle-mile broadband fiber on their facilities.

HB4823 provides for periodic audits of county 911 centers, and how they use the funds they receive from the 911 fees placed on consumers’ landline and cell phone bills.

Engrossed Committee Substitute for HB 4009, relating to the process for involuntary hospitalization, passed the House 81-18. The Senate approved the bill 33-1.

The original bill authorized a physician to order involuntary hospitalization in the absence of a magistrate, judge or mental health commissioner. Involuntary commitment proceedings must be instituted within 24 hours. An individual may be held 72 hours.

The Senate Judiciary Committee radically amended the bill. According to Senate Judiciary Chairman Charles Trump, the Judiciary Committee amended into the bill most of the provisions of SB 278. This bill provides the West Virginia Supreme Court of Appeals, working with the West Virginia Department of Health and Human Resources,  provide training to all magistrates to do involuntary commitment hearings.

It mandates a cross-agency study of forensic commitments—individuals deemed incompetent to stand trial and admitted to state hospitals.

The bill became much more comprehensive with the Senate-passed amendment.

Naloxone prescription update passes

Committee Substitute for HB 4102 – This bill updates who may prescribe and dispense an opioid antagonist such as Naloxone. The bill was jointly developed by the West Virginia Board of Pharmacy, the State Health Officer and the Office of Drug Control Policy. The bill passed the House 98-2. It passed the Senate 34-0.

HB 4003, which establishes standards for telehealth insurance coverage, including the Public Employees Insurance Agency, cleared the Senate 34-0.  The Senate inserted PEIA as part of a strike and insert amendment.

The bill preserves the requirement any physician practicing telehealth in West Virginia be licensed by a West Virginia medical board. The bill allows insurance companies to negotiate payments with providers instead of paying what they would pay for an in-person visit.

The House concurred in the Senate strike and insert amendment with further technical amendments and sent the bill back to the Senate, where it passed.

Long-acting contraceptive bill passes

Committee Substitute for SB 288 – This bill makes long-acting reversible contraceptives more available by limiting the number of visits required for Medicaid patients and requiring the Bureau for Public Health make available LARC to providers at cost. The bill passed the House 78-18.

PAs, APRNs may issue do not resuscitate orders

SB 647, which permits physician assistants and advanced practice registered nurses to issue do not resuscitate orders passed the House unanimously. The bill went back to the Senate because the House inserted a technical, clean-up amendment, and the Senate concurred.

Hartman Harman Cosco, Public Policy Strategists, LLC, (H2C) is a strategically assembled bipartisan lobbying firm comprised of legal, communications and policy professionals. H2C possesses the insight and intuition that only comes from decades of hands on experience leading community and statewide initiatives.

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