HB 4138 Text

COMMITTEE SUBSTITUTE
FOR
H. B. 4138

(By Delegates Miley, Webster, Burdiss, Ellem, Hamilton, Mahan and Shook)
(Originating in the House Judiciary Committee)

[February 15, 2008]

A BILL to amend and reenact §29A-1-3 of said code, relating to rulemaking requirements of the Department of Health and Human Services; requiring filing, public notice and comment on certain rules, plans and policies; providing for emergency rulemaking; and requiring public hearings in certain instances.

Be it enacted by the Legislature of West Virginia:
That §29A-1-3 of the Code of West Virginia, 1931, as amended be amended and reenacted, to read as follows:
ARTICLE 1. DEFINITIONS AND APPLICATION OF CHAPTER.

§29A-1-3. Application of chapter; limitations.

(a) The provisions of this chapter do not apply in any respect whatever to executive orders of the governor, which orders to the extent otherwise lawful shall be effective according to their terms: Provided, That the executive orders shall be admitted to record in the state register when and to the extent the governor deems suitable and shall be included therein by the secretary of state when tendered by the governor.
(b) Except as to requirements for filing in the state register, and with the Legislature or its rule-making review committee, provided in this chapter or other law, the provisions of this chapter do not apply in any respect whatever to the West Virginia board of probation and parole, the public service commission, the board of public works sitting as such and the secondary schools activities commission: Provided, That rules of such agencies shall be filed in the state register in the form prescribed by this chapter and be effective no sooner than sixty consecutive days after being so filed: Provided, however, That the rules promulgated by the state colleges and universities shall only be filed with the higher education governing boards: Provided further, That such agencies may promulgate emergency rules in conformity with section fifteen, article three of this chapter.
(c) The provisions of this chapter do not apply to rules relating to or contested cases involving the conduct of inmates or other persons admitted to public institutions, the open seasons and the bag, creel, size, age, weight and sex limits with respect to the wildlife in this state, or the conduct of persons in military service ~~or the receipt of public assistance~~. Such rules shall be filed in the state register in the form prescribed by this chapter and be effective upon filing.
(d) All rules, policies and plans of the Department of Health and Human Resources relating to public assistance, which will change the type or amount of benefits or services provided or eligibility for benefits or services , shall, at a minimum, comply with the filing requirements, notice and public comment and hearing provisions of sections five, six and seven, article three, chapter twenty-nine-a of this code. If the Secretary of the Department of Health and Human Resources determines that a submission or amendment of a state plan or a waiver plan will have a substantial impact on services, on benefits, or on payments to providers he or she may, solely at his or her discretion, convene a public hearing or hearings in locations around the state. Provided, That when rules are necessary to conform to changes in state or federal law where no agency discretion as to the substance of the rule is involved, then the provisions of this sub-section (d) shall not apply; Provided further: That if the Department of Health and Human Resources finds that an emergency exists requiring that emergency rules be promulgated earlier than the provisions of this sub- section (d) would permit, then such emergency rules together with a statement of the facts and circumstances constituting the emergency shall be filed with the Secretary of State and a notice of such filing shall be published in the state register. Such emergency rules shall become effective upon the approval of the Secretary of State in accordance with section fifteen-a, article three, chapter twenty-nine-a of this code, but promulgation of such emergency rules shall not otherwise waive the Department's obligation to comply with the provisions of this sub-section. Upon written request of at least ten persons submitted during the comment period a public hearing shall be held by the Department prior to the submission of any proposed change to a state plan with the federal government or any request for a waiver of a federal program requirement for a state plan or a public assistance program, either of which will change the type or amount of benefits or services provided or eligibility for benefits or services.
~~(d)~~ (e) Nothing herein shall be construed to affect, limit or expand any express and specific exemption from this chapter contained in any other statute relating to a specific agency, but such exemptions shall be construed and applied in accordance with the provisions of this chapter to effectuate any limitations on such exemptions contained in any such other statute.

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