Debriefing the 2022 WV Regular Legislative Session — Health Care

By Brian J. Skinner, Esq.

During its Second Session, the 85^th West Virginia Legislature passed several bills related to health care. As always, because it is an election year, abortion was on the agenda.

The Legislature passed a bill to prohibit abortion of a viable fetus because of the presence or presumption of a disability, and the Governor signed it. Senate Bill 468 prohibits, except in a medical emergency or in the case of a nonmedically viable fetus, a licensed medical professional from intentionally performing or attempting to perform or induce an abortion if it is being sought because of the presence or presumed presence of a disability or diagnosis in a fetus including, but not limited to, chromosomal disorders or morphological malformations occurring as the result of atypical gene expressions. An abortion may be performed only upon an acknowledgment by the patient that the abortion is not being sought because of a disability or diagnosis in the fetus and the acknowledgement must be made part of the patient’s chart.

When an abortion is performed, the medical professional must, within 15 days of the procedure, file a report with the Commissioner of the Bureau for Public Health that includes a statement from the patient confirming that the reason for the abortion was not because of a disability; the probable health consequences of the abortion to the patient; whether a medical emergency existed; and whether the fetus was a nonmedically viable fetus.

A licensed medical professional who intentionally or recklessly performs or induces an abortion is not subject to criminal prosecution but instead is considered to have acted outside the scope of practice permitted by law or otherwise in breach of the standard of care owed to a patient and is subject to discipline from the applicable licensure board for that conduct, including, but not limited to, loss of professional license to practice.

A patient who has an abortion prohibited by the new law is not subject to a sanction, civilly or criminally.

The bill contains several drafting errors, including one that would purport to deem a person who is subject to subsection (f) of the section who intentionally or recklessly performs or induces an abortion to have engaged in the unauthorized practice of medicine. However, the bill does not contain a subsection (f).

Despite the drafting errors, the Governor signed the legislation, which will become effective on June 10, 2022.

Two other bills related to abortion received consideration by the Legislature but were not enacted. House Bill 4004 would have prohibited abortions after 15 weeks’ gestation. House Bill 4005 prohibited the buying, selling, receiving, or otherwise transferring or acquiring a fetal body part resulting from an induced abortion.

House Bill 4004 passed the House with a vote of 81-18-1 and was referred to the Committee on Health when it arrived in the Senate. The bill remained in the Health Committee from Feb. 16 until March 11, the day before the final day of the session. As a result, because of the constitutional rule that requires a bill to be read on three separate days, the only way the bill could have been enacted was for the Senate to have waived that constitutional requirement. No attempt was made to waive the rule, and the bill expired on the final night of the session.

Similarly, House Bill 4005 passed the House of Delegates on Feb. 16. After arriving in the Senate, it was referred to the Committee on Health with a second reference to the Committee on the Judiciary. The Health Committee did not consider the bill until March 9, when it sent it back to the Senate floor without a recommendation for passage. As a result of the second reference, the bill went to the Committee on the Judiciary, where it died on the final night of the session.

Despite earlier efforts to address perceived onerous public health restrictions resulting from the Covid-19 pandemic during the 2021 Regular Session, the Legislature still believed it had work to do.

House Bill 4012, passed on the final night of the session, prohibits a state or local governmental official, entity, department, or agency to require proof of vaccination as a condition of entering the premises of a state or local government entity or utilizing services provided by a state or local government entity. The law does exempt situations where a federal law or regulation requires proof of vaccination as a condition of entering the premises of a local government-owned facility leased to a private entity where the local governmental unit primarily serves as a property owner receiving rental payments.

Additionally, the bill prohibits a hospital or state institution of higher education from requiring proof of vaccination as a condition of entering the premises except for facilities that have such a requirement by federal law or regulation.

The legislation also includes an amendment to current West Virginia Code §16-3-4b. The current law creates exemptions to employer-mandated conditions of employment requiring employees to be immunized against Covid-19. The bill excludes from the definition of a “Covered employer” Medicare or Medicaid-certified facilities that are subject to enforceable federal regulations contrary to the requirements of West Virginia law.

Another bill related to preventative measures to address the Covid-19 pandemic also was not successful. House Bill 4017would have enacted the Parent and Student Health Rights Act, prohibiting schools, educational institutions, and elected or appointed local officials from mandating masks for school students or school employees or, in some circumstances, Covid-19 testing or quarantine. The bill passed the House on party lines, but after getting the approval of the Senate Education Committee, the bill failed to get a hearing in the Senate Committee on the Judiciary before the session ended.

A third bill intended to address public-health restrictions related to Covid-19 also failed to pass before the session concluded. House Bill 4320 purported to require equal or even preferred treatment to persons who have natural immunity or antibodies from their contraction of an infectious or communicable disease as opposed to persons who have vaccine-induced immunity.

More specifically, the bill would have classified as fully vaccinated any persons who contracted a communicable or infectious disease and who obtained natural immunity, regardless of whether the person received a vaccine. Additionally, anyone who received antibodies as a result of contracting a communicable or infectious disease also would be classified as fully vaccinated. The bill passed the House largely along party lines, but it was not taken up by the Senate Committee on Government Organization before the Legislature adjourned sine die.

Other legislation impacting health care providers includes

Senate Bill 25, updates the provisions of the Medical Professional Liability Act as it applies to actions for an injury or death involving a nursing home, assisted living facility, acute care hospital providing intermediate care or skilled-nursing care. The bill includes a proviso that a one-year statute of limitations applies for any cause of action for medical injury resulting in injury or death to a person alleging medical professional liability against a nursing home, assisted living facility, or acute care hospital providing intermediate care or skilled-nursing care. The bill also decreases the tolling period from 180 days to 120 days of the date of a notice of claim.

Senate Bill 138 reduces the size of the Board of Medicine by one, from 15 to 14 members by eliminating one of the two doctors of podiatric medicine. Senate Bill 603 prohibits the Board of Medicine from authorizing a license or renewing a license when an applicant or licensee has unresolved disciplinary proceedings for unprofessional conduct pending in another jurisdiction.

The Legislature enacted the Occupational Therapy Compact in Senate Bill 221 to facilitate the interstate practice of occupational therapy.

The West Virginia Health Care Decisions Act is updated in Senate Bill 470 which removes the condition “persistent vegetative state” from the living will and combined medical power of attorney and living will. The bill also renames the “physician orders for scope of treatment” to “portable orders for scope of treatment” while also expanding their use by advanced practice registered nurses and physician’s assistants. Finally, the bill includes reciprocity for the portable orders for scope of treatment or similar medical orders validly executed in another state.

House Bill 4288 expands the practice of auricular acudetox to individuals in other professions in which the licensing board determines the public may benefit by authorizing a licensee to engage in the practice. Currently, several medical professionals are authorized to engage in the practice, including physician assistants, dentists, registered professional and practical nurses, and psychologists.

House Bill 4634 continues the Legislature’s recent efforts to lessen the oversight and discretion of state professional licensing boards by creating the Review and Credential Acknowledgement Procedures Act” or “RECAP Act.” The RECAP Act acknowledges occupational licensing credentials from other states when the person becomes a West Virginia resident. An occupational license or other authorization to practice issued pursuant to RECAP Act is valid only in West Virginia.

An occupational or licensing board must issue an occupational license or other authorization to practice to a person who:

• holds a valid occupational license or other authorization to practice in another state in a lawful occupation with a similar scope of practice and with education, experience, and examination requirements for licensure or authorization to practice similar to those of this state, as determined by the board in this state;
• has held the occupational license or other authorization to practice in the state where he or she holds a valid license or other authorization to practice for at least one year;
• has met all educational and examination requirements for occupational licensure or other authorization to practice in the state where he or she holds a valid license;
• is in good standing with the board in every other state where he or she holds a valid license;
• has established residency as a West Virginia resident;
• does not have a disqualifying criminal record as determined by the board in this state;
• has never had his or her license or other authorization to practice revoked by the board in another state because of negligence or intentional misconduct related to the person’s work in the occupation;
• did not surrender an occupational license or other authorization to practice because of negligence or intentional misconduct related to the person’s work in the occupation in another state;
• does not have a complaint, allegation, or investigation pending before a board in another state. If the person has a complaint, allegation, or investigation pending, the board in this state shall not issue or deny an occupational license or other authorization to practice to the person until the complaint, allegation, or investigation is resolved; and
• pays all applicable fees and meets all applicable bonding requirements in this state.

A person issued a license must comply with all relevant continuing-education requirements to renew a license established by the board and any other rule promulgated by the board. Additionally, if a jurisprudential examination specific to relevant West Virginia laws is required as a condition of licensure, a board may require a person applying for licensure pursuant to the RECAP Act to pass the exam prior to licensure.

Several health care-related bills that did not make it to the finish line included:

• Senate Bill 40, prohibiting insurance coverage from requiring prior authorization for tests to stage cancer. It passed the Senate but was not taken up by the House Committee on Health.
• Senate Bill 660, which set forth standards-of-care requirements for telehealth practice. The bill was recommended for passage by the Committee on the Judiciary but was referred to the Committee on Rules when the bill reached third reading. The bill remained in the Rules Committee until the end of the session. The bill originated in the Senate Committee on the Judiciary after members of the committee believed an amendment was necessary to the statutory rule-making authorization included in the previous year’s enactment.
• House Bill 2798 required the Department of Health and Human Resources to mandate mucopolysaccharidosis type 1 (MPS1) tests for newborns. It passed the House of Delegates and the Senate Committee on Health but was not taken up by the Senate Committee on Finance.
• House Bill 4089 would have required certain coverage and reimbursement for a person diagnosed with hypertension.

Finally, House Bill 4252, which would have reduced the copay cap on insulin and devices, died on the final night of the session when the clock struck midnight before the House of Delegates could concur with the Senate amendments to the bill.

The bill initially passed the House of Delegates on Jan. 26. Upon arriving in the Senate, it was referred to the Committee on Health. The Health Committee did not take the bill up until March 2. Both the Senate Health and Finance Committees recommended the bill for passage; however, the bill then became the focus of an effort to use it as a vehicle for provisions of two other bills that the House was unlikely to pass. On the floor of the Senate, Chairman Mike Maroney amended House Bill 4252 to include provisions related to PEIA coverage of spouses and a requirement that PEIA reimburse hospitals providing inpatient care at a rate of 110 percent of the Inpatient Prospective Payment System Diagnostic Related Group assigned amount in effect for the federal fee-for-service component of the Medicare program. The amendments were adopted and the passed the Senate. However, because the House did not concur with the amendments prior to midnight on the final day of the session, the bill died.

Brian Skinner is the former counsel to the West Virginia House of Delegates Judiciary Committee and counsel to the West Virginia Senate Minority Caucus. He was also general counsel to the West Virginia State Health Officer and Commissioner for the Bureau for Public Health. He has almost two-decades of experience as a strategic advisor and chief legal counsel to both executive and legislative branch public officials.