Fate of Health-Related Bills in the 2014 Legislative Session
The 81st West Virginia Legislature wrapped up session last Saturday night with 30 health-related bills (by my count). These bills spanned the spectrum from the hot button issue of abortion that continues to generate media coverage to bills that passed multiple committees and both chambers unanimously with nary a peep of press. Here I will highlight a handful of the more significant bills and their potential impact with a complete list of the bills, linked to the full text, at the end.
A good portion of these 30 bills seem to be largely procedural, simply amending or adding language to existing state code that overall has little statewide impact. An example of this is Senate Bill 314 which changed language in section 7-18-14 of state code from "There is one and only one hospital within the county" to read "There is no more than one hospital within the county."
One of the bills generating the most noise all session was one that would not have even been on the docket if it weren't for the January 9 chemical spill into the Elk River. The bill requires the Department of Environmental Protection to look at what sorts of pollutant sources exist upstream from water treatment plant intakes and creates an entirely new program to monitor above-ground storage tanks. Additionally, after much debate, the final version of the bill does require the state Bureau for Public Health to study the long-term health effects from the MCHM chemical exposure related to the Freedom Industries spill. (Check out Ken Ward's Coal Tattoo blog for lots of information on this bill.)
This was one of those bills that really seemed to slip by completely unnoticed. It adds two sections to existing state code, one (9-5-8b) gives authority to the Investigations and Fraud Management Division of the Office of the Inspector General to subpoena witnesses and documents in the investigation of potential cases of benefits fraud. The second section (61-4-9) states that anyone found guilty of possessing public assistance benefits (e.g. SNAP or TANF) that do not legally belong to them may face misdemeanor or felony charges based on the value of the benefits and could face fines and imprisonment. The bill did not come with a fiscal note.
Adding a new section to state code, 16-5C-21, HB 3108 states that nursing homes shall conduct criminal background checks on all applicants before permanently employing them in their facility. The bill states that any applicant who has been convicted of a felony within the past 10 years may not be employed by the nursing home, while any applicant who has ever been found guilty of a misdemeanor or felony involving abuse against an elderly person may not be employed.
The state's population is aging and a growing proportion of its residents are being admitted to nursing homes or other long-term care facilities and it is therefore more important than ever to ensure that we are protecting our seniors. I do find it odd that the bill is worded in such a way that criminal background checks must be completed on all applicants, and not just those applicants who are being offered employment. Also, as there is no fiscal note attached to this bill, I presume that the nursing homes will be responsible for the cost of requesting the checks.
I believe it is pretty safe to say that this is a bill that most folks would consider a no-brainer. HB 4237 amends Article 9A in state code to include alternative nicotine products, vapor products, and electronic cigarettes in the definition of tobacco products, specifying that no person under the age of 18 is permitted to be sold or use such products.
Possibly the most succinct bill passed this session, HB4335 adds a new section, 16-1-19, to state code that explicitly protects a mother's right to breast-feed a child at "any location open to the public." It may come as a surprise to many people that versions of this bill in the past have faced significant resistance, dying in committee. The vote tally this year was an overwhelming 130 Yeas to two Nays (Del. Gearheart in the House and Sen. Barnes in the Senate) with two not voting.
Unsurprisingly, one of the most controversial bills of the session that resulted in a number of impassioned speeches on the floors of both chambers was HB 4588 regarding abortion. Currently, West Virginia is one of 10 states that does not have a law that limits abortions based on gestational age of the fetus. This means that, in theory, a woman could seek an abortion at any point in her pregnancy. In practice, however, late-term abortions simply don't happen very often. According to the most recent data from the CDC, only seven abortions, less than one-half of one percent of the total abortions in West Virginia, occurred after 20 weeks of gestation. As health care providers are required to report all abortions for any reason, it's possible that some or all of those abortions were due to medical reasons of the mother or fetus. It's important to point out that HB 4588 does include certain, very narrowly defined exceptions to permit a woman to seek an abortion after 20 weeks gestation. One exception is if termination is necessary to "avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function." The other exception is if a physician determines that "there exists a non-medically viable fetus." Even with such language, a physician's fear of being prosecuted may limit a woman's medical options, as several physicians testified before the Legislature. Dr. David Jude, an OB-GYN at Marshall University was quoted saying "Frankly, I don't want to be on call wondering if I'm going to be prosecuted for terminating a pregnancy." In addition to these concerns, there is also belief among many that such a state law may be challenged as unconstitutional in federal court. Media reports indicate that Governor Tomblin is considering a veto of the bill due to such constitutionality questions.*
Some bills that didn't pass are also worth noting. For example, House Bill 4191 and Senate Bill 534 both would have raised the tobacco tax substantially, generating up to $137 million more in state revenue, but both died in committee. Oddly, even though electronic cigarettes and vapor products were redefined as tobacco products by HB 4237, restricting their usage by minors (discussed above), the failure of the tobacco tax bills means that for tax purposes, electronic cigarettes are still not considered tobacco products.
Senate Bill 6 to make pseudoephedrine available by prescription only was a controversial bill that received a lot of attention but ultimately failed amid last-minute controversy. While the bill's intent was to reduce the number of clandestine meth labs (and all the economic and health costs that go with them), pharmaceutical lobbyists won the public-relations battle, convincing many that the prescription-only requirement would not work even though the evidence from Oregon and Mississippi points the other way.
Finally, Senate Bill 455, or the Move to Improve Act, would have established physical activity minimums for the state Department of Education to include in its mandatory statewide curriculum. The bill was an effort to address obesity rates among West Virginia children but ended up dying in committee.
Here is a full list of health-related bills that passed the 2014 WV Legislature:
*Note: a reader contacted me to point out that I had referred to an incorrect draft of HB 4588, the Engrossed Version rather than what ultimately passed. I've updated the post to include reference to the language found in the final version of the bill--BM 3-17-14