H. B. 2712
(By Delegates Miley and Hamilton)
[Introduced February 20, 2009; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to amend and reenact §29A-1-3 of the Code of West Virginia,
1931,as amended, relating to rule-making 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 does 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 However, 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 does 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 The 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 In addition, such agencies may promulgate emergency
rules in conformity with section fifteen, article three of this
chapter.
(c) The provisions of This chapter do does 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 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. 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
subsection (d) shall not apply. However, if the Department of
Health and Human Resources finds an emergency exists requiring that
emergency rules be promulgated earlier than subsection (d) would
permit, then such emergency rules together with a statement of the
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 this subsection.
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.
NOTE: This bill, if enacted, would compel the Department of
Health and Human Services to establish filing, notice, public
comment and hearing requirements relating to any proposed changes
to any of its rules, policies, and plans regarding the public the
type or amount of public assistance benefits or services provided
or eligibility for benefits or services. The DHHR would also be
empowered with emergency rule-making powers.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.