Debriefing the 2021 WV Legislative Session – Health Care Practitioners

By Brian Skinner, Esq.

In a year where COVID-19 resulted in health care issues dominating the news, the West Virginia Legislature considered several health care related bills including legislation to increase patient access to health care, address the cost of health care, and limit the liability of health care providers for COVID-19 related treatment. This article will summarize some of the more notable health care related legislation enacted during the 1^st session of the 85^th Legislature.

Legislation intended to increase access to health care includes H.B. 2024  which authorizes out-of-state health care practitioners to provide telehealth services so long as the provider is licensed in good standing in one of the 50 states, is not currently under investigation or subject to an administrative complaint, and is registered as an interstate telehealth practitioner in West Virginia.

A patient who has an existing relationship with a practitioner must have an in-person visit within 12 months of their initial telehealth visit. However, this requirement may be suspended, at the discretion of the practitioner, on a case-by-case basis, and it does not apply to visits related to acute inpatient care, post-operative follow-up checks, behavioral medicine, addiction medicine, or palliative care.

Unless a physician has an existing relationship with a patient, he or she may not prescribe Schedule II drugs during the telehealth visit.

The bill was signed by the Governor on April 9, 2021 and became effective on March 30, 2021.

Other bills intended to increase patient access to health care include H.B. 2266  which extends Medicaid coverage to pregnant women and their newborn infants up one-year postpartum and H.B. 2877 which expands direct health care agreements beyond primary care to include more medical care services, including physical therapists. Direct primary care is a financial arrangement made directly between a patient and healthcare provider. It cuts the insurance providers out of the process, erasing the need for patients and providers alike to file health insurance claims.

In an effort to address health care costs, H.B. 2005 authorizes the West Virginia Insurance Commissioner to enforce the applicable provisions of the No Surprises Act (H.R. 133, Public Law 116-260).The new law gives the commissioner the authority to assess a fine of up to $10,000 per violation, after notice and hearing, upon satisfactory evidence that any insurer, medical provider, or health care facility is violating the federal No Surprises Act. The law will become effective January 1, 2022.

As expected, one of the priorities of the Legislature going into the 2021 regular session was addressing the concerns of businesses and health care providers that they were likely to beset by a wave of pandemic-related lawsuits seeking to blame them for customer, patient, or employee exposure to COVID-19. In response to this threat and the desire to eliminate obstacles to efforts to reopen and rebuild the economy, West Virginia joined a growing list of states enacting COVID liability shield laws.

On March 19, 2021, Governor Jim Justice signed S.B. 277, the COVID-19 Jobs Protection Act (“Act”), intended to “[e]liminate the liability of the citizens of West Virginia and all persons including individuals, health care providers, health care facilities, institutions of higher education, businesses, manufacturers, and all persons whomsoever, and to preclude all suits and claims against any persons for loss, damages, personal injuries, or death arising from COVID-19.” In short, the Legislature intends the Act to “[p]rovide assurances to businesses that reopening will not expose them to liability for a person’s exposure to COVID-19.”

Essentially, the legislation forecloses any claim for damages against any person, essential business, business, entity, health care facility, health care provider, first responder, or volunteer for loss, damage, physical injury, or death arising from COVID-19, from COVID-19 care, or from impacted care.

The Act applies retroactively to January 1, 2020, months before the first case of COVID-19 was identified in West Virginia. Unlike other states that have enacted similar legislation, the Legislature did not include a termination date for these immunity protections. However, given that the end of the pandemic is not yet in sight, the lack of a termination date relieves the Legislature of the need to revisit the law to extend these protections.

Some other notable legislation enacted during the session includes S.B. 372, which gives the West Virginia Board of Medicine greater discretion to approve graduate clinical training for physicians who graduate from non-U.S. medical schools, but train in the U.S., and S.B. 397 which adds critical access hospitals to the types of facilities that must pay an additional health care provider tax.

In probably the most controversial health care related bill considered this session, H.B. 2982, the Second Chances at Life Act of 2021, requires physicians who prescribe or dispense an abortion-inducing medication to inform their patient that it may be possible to counteract the intended effects of mifepristone by administering doses of progesterone.

Because this process has not been approved by the Food and Drug Administration (FDA), opponents of the legislation, including the American College of Obstetricians and Gynecologists (ACOG), argued that the drug therapy intended to counteract the abortion-inducing drug is unapproved and unfounded legislative mandates like H.B. 2982 represent dangerous political interference and compromise patient care and safety.

Proponents asserted that Progesterone, used in the reversal process, has been safely used in pregnancy for more than 50 years. They argue that initial studies show that the birth defect rate in babies born after the APR is less than or equal to the rate in the general population.

The bill includes the specific language that the physician must tell a patient – “Some suggest that it may be possible to counteract the intended effects of a mifepristone chemical abortion by taking progesterone if the female changes her mind, before taking the second drug, but this process has not been approved by the Food and Drug Administration.”

A physician who willfully violates the law may be subject to sanctions by their licensing board.

In September 2020, a federal judge has blocked a similar Tennessee law that required women undergoing drug-induced abortions be informed the procedure could be reversed. Abortion rights advocates argued the law is unconstitutional because it requires doctors to communicate “controversial government-mandated” information that they otherwise would not relay to their patients. United States District Judge William Campbell held that the plaintiffs demonstrated a strong or substantial likelihood of success on the merits of their claims that the law violates the First Amendment by requiring abortion providers to convey a mandated message that is misleading.

The bill becomes effective on July 9, 2021.

Brian 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.