Virginia General Assembly Special Session Update

September 3, 2020

The General Assembly convened in special session on Tuesday, August 18 in accordance with a proclamation issued by the Governor on July 17.  The Governor’s proclamation specified that the scope of the special session would encompass legislation related to the pandemic and criminal justice reform, as well as revisions to the budget in accordance with the new revenue forecast.  Both House and Senate committees have been meeting in the intervening weeks; Senate members are meeting in person, while the House is meeting virtually, but all committee testimony in both chambers is being received virtually.  More than 400 bills and resolutions had been filed as of September 3.  Several bills under consideration by the General Assembly are discussed below.

Workers’ Compensation COVID-19 Presumption Legislation Updates
On August 31, legislation that proposes adding COVID-19 to the list of illnesses presumed to be incurred in the course of employment for multiple categories of first responders, health care workers, and school board employees was reported by the House Appropriations Committee by a vote of 14-8. The legislation has potentially significant negative fiscal impact to local governments in the tens of millions of dollars.

HB 5028 (Jones) adds COVID-19 to the list of existing conditions currently presumed be an occupational disease suffered in the line of duty for firefighters, law-enforcement officers, first responders, health care providers, and school board members and therefore covered by the Virginia Workers’ Compensation Act. This presumption would retroactively be effective to January 1, 2020.

This bill was reported and referred to House Appropriations by the House Labor and Commerce Committee on August 26, by a vote of 18-4. VACo registered to provide virtual testimony stating our concerns at both committee meetings. The bill now heads to the House floor.

In the Senate, SB 5066 (Saslaw) adds the same retroactive presumption for the same employee categories, except it does not include school board employees but does include Department of Correction officers. VACo staff spoke in opposition to the bill when it was heard in the Senate Commerce and Labor Committee, which reported and referred the bill to Senate Finance and Appropriations by a vote of 12-3. The bill is listed for consideration on the September 3 meeting docket.

As previously reported, according to actuarial data and analysis provided to VACo by VACORP, the resulting fiscal impacts to state and local governments could be very large. Preliminary analysis estimates a multi-million-dollar fiscal impact to state and local governments to expand presumptions to first responders and a significantly larger figure to do so for school board employees. This includes a $20-$25 million fiscal impact for expanding presumptions for first responders and an additional $60-$70 million fiscal impact for expanding presumptions to school board employees.

According to the fiscal impact statement from the Commission on Local Government, “A majority of localities…noted the that the bill would increase workers compensation, Line of Duty Act (LODA), and volunteer accident insurance premiums. Localities also noted that the unfunded mandate imposed by the provisions of the bill would be financially detrimental, would open the door to more virus type ailments being added to workers’ compensation defined illnesses, which could potentially increase litigation.”

VACo strongly urges that passage of any legislation that expands presumptions to include COVID-19 be done only if in concert with additional state funding assistance to local governments to offset additional costs through risk insurance. VACo reiterated these concerns in a recent letter to the members of Senate Finance. We encourage you to contact your representatives to share your concerns regarding the fiscal impacts of these bills.

VACo Contact: Jeremy R. Bennett

Mental health co-responder legislation under consideration
Several bills have been introduced during the special session that seek to ensure that when law enforcement is called to respond to a situation in which an individual is experiencing a behavioral health crisis, that individual is provided with treatment, with the goals of reducing arrests and use of force by law enforcement and accelerating access to care for individuals in crisis. Both HB 5043 (Bourne) and SB 5038 (McPike), which incorporated SB 5084 (McClellan), seek to establish a mental health alert system that would use teams of mental health services providers, peer recovery specialists, and law enforcement officers to respond to calls for service, with the mental health providers leading the team. HB 5086 (Kory) is similar to SB 5038.

SB 5038, which has been referred to the Senate Finance and Appropriations Committee after being considered by the Senate Judiciary Committee, directs the Department of Criminal Justice Services (DCJS) and the Department of Behavioral Health and Developmental Services (DBHDS), in collaboration with law enforcement and mental health stakeholders, to support the development of such a system throughout the Commonwealth by January 1, 2021; a status report is required by November 2021, and periodic reports on the effectiveness of the program are due in ensuing years.

HB 5043, which has been referred to the House Appropriations Committee after being reported from the House Public Safety Committee, similarly requires DCJS and DBHDS to support the establishment of the alert system by January 1, 2021, but also requires every locality to have established an alert system with the associated community care teams (individually or as part of a region) by January 1, 2022. VACo has expressed opposition to this mandatory provision of the bill due to concerns about localities’ ability to establish such a system in a relatively short period of time without a significant infusion of resources by the state. Cost estimates subsequently provided by the state for both bills indicate that staffing and operating costs for each team are an estimated $972,456, and that if each Community Services Board catchment area included one team, the cost would be $34 million annually. VACo has suggested that it may be beneficial to consider how these efforts could work in tandem with current local initiatives underway, as well as with the array of community services being phased in across all CSBs through the STEP-Virginia initiative, in order to meet the bill’s objectives.

VACo Contact: Katie Boyle

Telemedicine bills advance
HB 5046 (Adams, D.) and SB 5080 (Barker) would provide some additional flexibility in the delivery of health care via telemedicine, the use of which has grown substantially during the COVID-19 pandemic. The bills would require insurers, including Medicaid, to cover telemedicine services regardless of the originating site, so that the patient could receive services from his or her home or place of employment or a school, among other locations. The legislation also directs the Department of Medical Assistance Services (DMAS) to continue to reimburse health care providers for Medicaid-covered services delivered in accordance with the flexibility outlined by DMAS this spring through July 1, 2021. These accommodations include allowing services to be provided by audio-only means (sometimes necessary in order to accommodate patients’ limited access to high-speed internet), and allowing certain additional behavioral health services to be provided via telemedicine.

VACo supports these bills in accordance with its long-standing legislative position in favor of the use of telemedicine to provide long-distance clinical care, patient and professional education, and public health, as well as support for flexibility in the delivery of these services. Additional flexibility, such as the ability for a patient’s home to be an originating site, would enhance the ability of providers to serve community members, particularly in rural areas.

VACo Contact: Katie Boyle

Sovereign Immunity Bill Fails to Advance
Legislation introduced by Senator Joe Morrissey pertaining to law enforcement officers and sovereign immunity has failed to advance out of Committee.

SB 5065 (Morrissey) sought to create a civil action for the deprivation of a person’s rights by a law-enforcement officer. The bill provided that a plaintiff may be awarded compensatory damages, punitive damages, and equitable relief, as well as reasonable attorney fees and costs. Finally, the bill provided that sovereign immunity or any other immunities or limitations on liability or damages shall not apply to such actions and that qualified immunity is not a defense to liability for such deprivation of rights.

Member of the Senate Committee on the Judiciary expressed trepidation at this concept, particularly during the shortened, special session. As a result, the Committee voted 14-0 to pass the bill by indefinitely and instead request that the Boyd-Graves Conference study this issue. The Boyd-Graves Conference is a highly respected committee comprised of experienced civil trial lawyers and judges. The Conference studies pressing legal issues and, if needed, recommends needed changes to the Code of Virginia and the Rules of Court relating to state court civil litigation.

VACo Contact: Chris McDonald, Esq.

Body-Worn Camera System Fund Passes Senate
Legislation creating a special non-reverting fund for body-worn camera costs has passed the Senate and will now be sent to the House of Delegates.

SB 5052 (Reeves) creates the Body-Worn Camera System Fund. The Fund shall be used solely for the purposes of assisting state and local law-enforcement agencies with the costs of purchasing, operating, and maintaining body-worn camera systems. As drafted, the bill does not allow for the fund to be used for staff positions to relieve pressure on Commonwealth’s Attorneys offices, which must review all footage captured by the cameras.

SB 5052 (Reeves) unanimously passed the Senate and currently awaits committee referral by the House of Delegates. While the bill creates a funding mechanism, unfortunately there is no funding appropriated for such a program. Nonetheless, the bill is an important step in the right direction.

VACo supports SB 5052 (Reeves).

VACo Contact: Chris McDonald, Esq.

Bill Expanding Local Government Authority over Monuments Introduced
Delegate Delores McQuinn has introduced new legislation pertaining to the authority of local governments to remove, relocate, or alter war memorials or monuments located on government property.

HB 5030 (McQuinn) proposes a number of changes to current law:

  • It changes current language about a locality’s authority to “contextualize or cover” to now stipulate that a locality may “alter” a monument or memorial.
  • It repeals the current prohibition against a locality removing, relocating, contextualizing, or covering a monument or memorial in a publicly owned cemetery.
  • It removes the current requirement that the locality publish notice of its intent to remove, relocate, contextualize, or cover such monument or memorial in a newspaper having general circulation in the locality, allow a public hearing on the matter, and, if the governing body votes to remove the monument or memorial, offer, for a period of at least 30 days, the monument or memorial for relocation and placement to any museum, historical society, government, or military battlefield.

HB 5030 (McQuinn) was heard by the House Rules Committee and will now be heard by the full House of Delegates.

VACo Contact: Chris McDonald, Esq.

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