Eighty-second Legislature

First Regular Session

Held at Charleston

Published by the Clerk of the House

West Virginia Legislature

JOURNAL

of the

House of Delegates

The House of Delegates met at 10:00 a.m., and was called to order by the Honorable Tim Armstead, Speaker.

Prayer was offered and the House was led in recitation of the Pledge of Allegiance.

The Clerk proceeded to read the Journal of Friday, March 6, 2015, being the first order of business, when the further reading thereof was dispensed with and the same approved.

Delegate Howell, Chair of the Committee on Government Organization, submitted the following report, which was received:

Com. Sub. for S. B. 336, Eliminating Health Care Authority’s power to apply certain penalties to future rate applications,

Delegates Howell, A. Evans and Rowan offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 113 - “Requesting the Division of Highways place signs on United States Route 220 at the Mineral/Hampshire County border, United States Route 50 at the Mineral/Grant County border, State Route 28 at the Mineral/Hampshire County border and also the Maryland/West Virginia state line, State Route 42 at the Mineral/Grant County border, State Route 46 at the Maryland/West Virginia state line, State Route 93 at the Mineral/Grant County border, and State Route 956 at the Maryland/West Virginia state line stating: ‘Mineral County, Celebrating the Sesquicentennial, 1866 - 2016’.”

Whereas, Mineral County was created on February 1, 1866, by an Act of the West Virginia Legislature, from the existing Hampshire County. The name was selected for the great mineral reserves that are found in the county; and

Whereas, Mineral County has played an important role in West Virginia history. Two important forts for the early settlers of Mineral County were built in Frankfort Village and New Creek. In 1755, during the French and Indian War, Colonel George Washington gave orders to build a stockade and fort at Frankfort Village. During a battle at the fort, Colonel John Ashby was attacked but made “a most remarkable escape to the fort”. Colonel Ashby was later put in command of the fort and remained there through the Revolutionary War. The fort and the town were later named Fort Ashby. In addition, the fort in New Creek helped secure the area for the English during the French and Indian War. New Creek was also an important military base during the Civil War because its fort, located on the site where Potomac State College now stands, commanded roads leading to the South Branch and Shenandoah Valleys. In addition, it was a training camp for Union soldiers from Pennsylvania, Ohio, Indiana, and Illinois. After the Civil War, New Creek Station became the “railhead” for the commercial interests of a large territory; and

Whereas, Many immigrants in the 19th century worked their way across the coalfields of Pennsylvania, down through Maryland, and settled in Mineral County. The area’s population reflects a diverse mixture of Mennonites, Germans, Swiss, English, Scots, Italians, Chinese, Irish and Jews; and

Whereas, Perhaps the most prominent historic figure was the industrialist Henry Gassaway Davis, who began as a brakeman for the Baltimore & Ohio Railroad at age 20 and lived in Piedmont early in his life. Davis later was elected to the U.S. Senate and ran for vice president in 1904, when he and Democratic presidential candidate Alston Parker lost to Teddy Roosevelt. Davis founded Elkins and owned his own railroad; and

Whereas, Mineral County is the birthplace of many notable West Virginians including Nancy Hanks Lincoln, the mother of Abraham Lincoln, Walter E. “Jack” Rollins, who co-wrote “Here Comes Peter Cottontail” and “Frosty the Snowman”, John Kruk, former All-Star Major League baseball player, and Henry Louis Gates, Jr., a prominent African-American scholar and author; and

Whereas, It is fitting and proper that the Legislature recognize Mineral County and celebrate its Sesquicentennial; therefore, be it

That the Division of Highways is hereby requested to have made and place signs on United States Route 220 at the Mineral/Hampshire County border, United States Route 50 at the Mineral/Grant County border, State Route 28 at the Mineral/Hampshire County border and also the Maryland/West Virginia state line, State Route 42 at the Mineral/Grant County border, State Route 46 at the Maryland/West Virginia state line, State Route 93 at the Mineral/Grant County border, and State Route 956 at the Maryland/West Virginia State line stating: “Mineral County, Celebrating the Sesquicentennial, 1866 - 2016”; and, be it

Further Resolved, That the Clerk of the House of Delegates, forward a certified copy of this resolution to the Secretary of the Department of Transportation.

S. C. R. 50, Providing for issuance of refunding bonds pursuant to Safe Roads Amendment of 1966; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

Second ReadingCom. Sub. for S. B. 277, Requiring issuance of certificate of birth resulting in stillbirth; on second reading, coming up in regular order, was read a second time and ordered to third reading.

Com. Sub. for S. B. 421, Relating to punitive damages in civil actions; on second reading, coming up in regular order, was read a second time.

At the request of Delegate Miller, and by unanimous consent, the bill was advanced to third reading with an amendment pending, and the rule was suspended to permit the consideration of the amendment on that reading.

S. B. 532, Relating to civil liability immunity for clinical practice plans and medical and dental school personnel; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:

“ARTICLE 7E. IMMUNITY FROM CIVIL LIABILITY FOR CLINICAL PRACTICE PLANS AND PERSONNEL ASSOCIATED WITH MEDICAL AND DENTAL SCHOOLS.

That the citizens of this state have been and should continue to be well served by physicians and dentists educated and trained at the Marshall University School of Medicine, the West Virginia School of Osteopathic Medicine, the West Virginia University School of Medicine and the West Virginia University School of Dentistry;

That the state’s medical and dental schools play a vital role in ensuring an adequate supply of qualified and trained physicians throughout the state;

That the education, training and research provided at the state’s medical and dental schools and state medical schools are is an essential governmental function in which the state has a substantial and compelling interest;

That the provision of clinical services to patients by faculty members, resident physicians, residents, fellows and students of the state’s medical and dental schools and state medical school, is an inseparable component of the aforementioned education, training and research;

That the provision of the clinical services significantly contributes to the ongoing quality, effectiveness and scope of the state’s health care delivery system;

That the provision of the clinical services also raises the public profile and reputation of the respective institutions both regionally and nationally, thereby facilitating the recruitment of talented faculty, residents, fellows and students to their programs of study;

That the provision of the clinical services generates additional revenues needed to fund faculty salaries and other costs associated with the overall operation of the state medical school and state’s medical and dental schools;

That the continued availability of the revenues to the state medical school and state’s medical and dental schools is necessary to their ongoing operation and delivery of the benefits described above;

That the continued availability of the revenues is compromised by the cost of medical professional liability insurance, the cost of defending medical professional liability claims, and the cost of compensating patients who suffer medical injury or death;

That the state concurrently has an interest in providing a system that makes available adequate and fair compensation to those individual patients who suffer medical injury or death;

That it is the duty and responsibility of the Legislature to balance the rights of individual patients to obtain adequate and fair compensation, with the substantial and compelling state interests set forth herein supporting the need for a financially viable system of medical and dental schools;

That, in balancing these important state interests, the Legislature acknowledges the sovereign immunity set forth in the West Virginia Constitution under Article VI, Section 35, to prevent the diversion of state moneys from legislatively appropriated purposes;

That, in conjunction with the provision of clinical services to patients by faculty members, resident physicians, residents, fellows and students of the state’s medical and dental schools, or state medical school, it is a common practice both here and in other states to create one or more clinical practice plans as nonprofit corporations;

That the clinical practice plans, among other things, administratively support clinical activities by holding real and personal property, offering personnel and financial management, providing billing and collection for services rendered, and disbursing excess revenues back to the respective medical and dental schools;

That the clinical practice plans become integrated with their respective state medical school and state’s medical and dental schools and exclusively serve the interests of these schools and their faculty;

That any moneys the clinical practice plans expend for the defense, settlement, and satisfaction of medical professional liability claims inevitably result in a shortfall of funds available to the medical and dental schools for faculty compensation and other operational purposes, thereby undermining the sovereign immunity otherwise granted to state institutions by the West Virginia Constitution;

That it is therefore reasonable and appropriate for the Legislature to provide immunity from civil liability to clinical practice plans and their respective directors, officers, employees and agents given the substantial and compelling state interests being served; and

That it is further reasonable and appropriate to require the state’s medical and dental schools to maintain a level of medical professional liability insurance to adequately and fairly compensate patients who suffer medical injuries or death.

(1) ‘Clinical practice plan’ means any of the nonprofit corporations that are operated to assist the state medical school and state’s medical and dental schools in providing clinical services to patients and which are controlled by governing boards all the voting members of which are faculty members or university officials. Clinical practice plans as defined herein shall be considered agents of the state.

(2) ‘Contractor’ means an independent contractor, whether compensated or not, who is licensed as a health care professional under chapter thirty of this code, and who is acting within the scope of his or her authority for a state medical school, state’s medical and dental schools, or a clinical practice plan, and is a member of the faculty of a state’s medical and dental schools or state medical school.

(3) ‘Employee’ means a director, officer, employee, agent or servant, whether compensated or not, who is licensed as a health care professional under chapter thirty of this code and who is acting within the scope of his or her authority or employment for a state’s medical and dental schools, a state medical school or a clinical practice plan.

(4) ‘Health care’ means any act or treatment performed or furnished, or which should have been performed or furnished, by any director, officer, employee, agent or contractor of a state medical school, state’s medical and dental schools, or a clinical practice plan for, to or on behalf of a patient during the patient’s medical care, treatment or confinement.

(5) ‘Medical injury’ means injury or death to a patient arising or resulting from the rendering or failure to render health care.

(6) ‘Medical professional liability insurance’ means a contract of insurance, or any self-insurance retention program established under the provisions of section ten, article five, chapter eighteen-b of this code, that pays for the legal liability arising from a medical injury.

(7) ‘Patient’ means a natural person who receives or should have received health care from a director, officer, employee, agent or contractor of a state medical school, state’s medical and dental schools, or a clinical practice plan under a contract, express or implied.

(8) ‘Scope of authority or employment’ means performance by a director, officer, employee, agent or contractor acting in good faith within the duties of his or her office, employment or contract with a state medical school, state’s medical and dental schools, or a clinical practice plan, but does not include corruption or fraud.

(9) ‘State’s medical and dental schools’ or ‘state medical school’ means the Marshall University School of Medicine, the West Virginia School of Osteopathic Medicine, the West Virginia University School of Medicine and the West Virginia University School of Dentistry.

§55-7E-3. Immunity for clinical practice plans and their directors, officers, employees, agents and contractors.

Notwithstanding any other provision of this code, all clinical practice plans, and all employees and contractors of a state’s medical and dental schools, state medical school or a clinical practice plan, are not liable are only liable up to the limits of insurance coverage procured through the State Board of Risk and Insurance Management in accordance with section four, article seven-e, chapter fifty-five, arising from for a medical injury to a patient, including death resulting, in whole or in part, from the medical injury, either through act or omission, or whether actual or imputed, while acting within the scope of their authority or employment for a state’s medical and dental schools, state medical school or a clinical practice plan. The provisions of this article apply to the acts and omissions of all full-time, part-time, visiting and volunteer directors, officers, faculty members, resident physicians residents, fellows, students, employees, agents and contractors of a state’s medical and dental schools, state medical school or a clinical practice plan, regardless of whether the persons are engaged in teaching, research, clinical, administrative or other duties giving rise to the medical injury, regardless of whether the activities were being performed on behalf of a state’s medical and dental schools, state medical school or on behalf of a clinical practice plan and regardless of where the duties were being carried out at the time of the medical injury.

§55-7E-4. Medical professional liability insurance for state’s medical and dental schools and state medical schools.

The State Board of Risk and Insurance Management shall provide medical professional liability insurance to all of the state’s medical and dental schools, state medical school, all of their clinical practice plans and all of their directors, officers, employees, agents and contractors in an amount to be determined by the State Board of Risk and Insurance Management, but in no event less than $1 $1.5 million for each occurrence, to increase to account for inflation by an amount equal to the consumer price index published by the United States department of labor, up to $2 million for each occurrence. The clinical practice plans shall pay for this insurance. The provision of professional liability insurance is not a waiver of immunity that any of the foregoing entities or persons may have pursuant to this article or under any other law. Any judgment obtained for a medical injury to a patient as a result of health care performed or furnished, or which should have been performed or furnished, by any employee or contractor of a state’s medical and dental school, state medical school or clinical practice plan shall not exceed the limits of medical professional liability insurance coverage provided by the State Board of Risk and Insurance Management pursuant to this section.

The provisions of this article are applicable prospectively to all civil actions commenced on or after July 1, 2015.

The provisions of this article operate in addition to, and not in derogation of, any of the provisions contained in article seven-b of this chapter.”

Com. Sub. for H. B. 2766, Expiring funds to the unappropriated balance in the State Fund, General Revenue from the Joint Expenses, and from the Department of Health and Human Resources; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

Com. Sub. for H. B. 2769, Expiring funds to the unappropriated surplus balance in the State Fund, General Revenue from various agencies; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

Com. Sub. for H. B. 2772, Expiring funds to the unappropriated surplus balance in the State Fund, General Revenue, from the Auditor’s Office - Purchasing Card Administration Fund; on second reading, coming up in regular order, was read a second time.

At the request of Delegate Miller, and by unanimous consent, the bill was advanced to third reading with amendments pending, and the rule was suspended to permit the consideration of the amendments on that reading.

H. B. 3020, Making a supplementary appropriation to the Department of Military Affairs and Public Safety, Division of Corrections; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

H. B. 3021, Making a supplementary appropriation to the Department of Health and Human Resources; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

H. B. 3022, Making a supplementary appropriation to the Treasurer’s Office, to the State Board of Education, to Mountwest Community and Technical College, to the West Virginia School of Osteopathic Medicine, and to West Virginia State University; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

First ReadingThe following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:

Com. Sub. for S. B. 30, Permitting shared animal ownership agreement to consume raw milk,

S. B. 89, Providing Prosecuting Attorneys Institute’s council establish Executive Director’s salary,

S. B. 292, Relating to licenses for business of currency exchange, transportation or transmission,

S. B. 332, Relating to administrative fees for Tax Division, Department of Revenue,

Com. Sub. for S. B. 344, Relating to limitations on back and front pay and punitive damages,

Com. Sub. for S. B. 411, Creating Asbestos Bankruptcy Trust Claims Transparency Act and Asbestos and Silica Claims Priorities Act,

S. B. 489, Imposing statute of limitations on civil actions derived from surveying of real property,

S. B. 545, Removing certain prior bank overdraft approval by director or executive officer,

S. B. 576, Prohibiting PSC jurisdiction of internet protocol-enabled service or voice over internet protocol-enabled service and certain telephone company transactions,

At 10:28 a.m., the House of Delegates adjourned until 11:00 a.m., Monday, March 9, 2015.