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Introduced Version Senate Bill 302 History

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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 302

(By Senators Hunter, Minard, Foster, Stollings, White, Mckenzie, Yoder and Kessler)

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[Introduced January 23, 2008; referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.]

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A BILL to amend and reenact §16-29E-2 and §16-29E-5 of the Code of West Virginia, 1931, as amended; and to amend and reenact §29A-1-3 of said code, all relating to legislative exempt rule-making requirements of the Department of Health and Human Resources; requiring public notice and comment on rules, policies and state plans relating to public assistance; requiring public hearings in certain instances; requiring review of all legislative-exempt rules, policies and plans by the Legislative Oversight Commission on Health and Human Resources Accountability; and authorizing recommendations for changes and legislation.

Be it enacted by the Legislature of West Virginia:
That §16-29E-2 and §16-29E-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §29A-1-3 of said code be amended and reenacted, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 29E. LEGISLATIVE OVERSIGHT COMMISSION ON HEALTH AND HUMAN
RESOURCES ACCOUNTABILITY.

§16-29E-2. Legislative intent.
It is the intent of the Legislature that all actions taken pursuant to the provisions of this article by the Legislature and the various agencies within the department of health and human resources Department of Health and Human Resources serve the following core set of principles:
(1) That all health and social programs offered under state authority be coordinated to maximize efficiencies and minimize competition within the various agencies thereby addressing the needs of the citizens more effectively;
(2) That communication be facilitated among the various agencies within the department of health and human resources Department of Health and Human Resources and between the department and the Legislature;
(3) That policy changes, not made by legislative rule, be discussed with the commission for purposes of coordinating those policies with existing programs and stated goals;
(4) That programs or policies implemented in accordance with federal mandates be communicated to the commission;
(5) That in developing and implementing programs with private or federal grant moneys, the various agencies communicate their efforts to the commission to ensure and facilitate future state funding; and
(6) That agencies previously exempted from rule-making review by federal or state statutes advise the commission of program changes which may affect the health and well-being of the citizens of West Virginia. All such rules, policies and plans shall comply with the notice and public comment and hearing provisions of sections five, six and seven, article three, chapter twenty-nine-a of this code. A minimum of one public hearing shall be held in each congressional district in the state prior to the submission of any proposed change to a state plan with the federal government and any request for a waiver of a federal program requirement for a state plan or a public assistance program which will change the type or amount of benefits or services provided or eligibility for benefits or services.
§16-29E-5. Powers and duties of commission.
(a) The powers, duties and responsibilities of the commission shall include the following:
(1) Make a continuing investigation, study and review of the practices, policies and procedures of the health care and social services agencies in this state;
(2) Make a continuing investigation, study and review of all matters related to health and social policy in the state;
(3) Review program development by the various agencies of the department of health and human resources Department of Health and Human Resources if those programs impact the physical, emotional or social well-being of the citizens of West Virginia;
(4) Conduct studies on:
(A) The amount of funds expended by hospitals and other health care providers of this state for services to persons who are unable to pay for those services and for which they receive no other form of reimbursement;
(B) The extent to which persons in this state forego needed medical services because of insufficient income and assets to pay for those services;
(C) The extent to which the state is maximizing available federal programs and moneys in providing health care services to the citizens of this state;
(D) The operation of the programs and funds created by article twenty-nine-c of this chapter; and
(E) The roles of the public, private and private nonprofit sectors in providing health care services to the citizens of this state;
(5) Review and study the state medicaid program in order to determine if the state medicaid agency, as the payer of last resort, is expending maximum effort to identify alternate private insurance resources for medicaid beneficiaries;
(6) Review and study the feasibility and financial impact upon the state of assuring increased access to medicaid beneficiaries to primary health care in the nonhospital setting by requiring enrollment in a primary care clinic program, if available;
(7) Review and study the feasibility and financial impact upon the state of the establishment of different and lesser schedules of payment for primary health services delivered by a hospital emergency room as compared to the schedule of payments for emergency room services of a true medical emergency nature;
(8) Conduct a study on the effects of rural health networks, including effects on the quality, cost and availability of care; and
(9) Meet jointly with the advisory committee created in article thirty-five of this chapter to determine methods for coordinating the collection and analysis of health care information within the state, including the development of health information systems that will allow for the electronic transmittal of data and access by the various agencies of government.
(10) Review all proposed rules, policies and state plans promulgated, proposed or developed by the department, and any amendments thereto, relating to public assistance, health care or other program to provide goods or services controlled, regulated or provided by the department. The review shall be conducted after the public comment or public hearing required by section three, article one, chapter twenty-nine-a of this code and prior to submission of any proposed rule, policy, state plan or amendment to the United States government. The commission may recommend changes to the department as well as propose legislation to effectuate changes to any rule, policy or state plan.
(11) The commission shall review each proposed legislative rule, policy or plan and, in its discretion, may hold public hearings thereon. Such review shall include, but not be limited to, a determination of:
(1) Whether the agency has exceeded the scope of its statutory authority in approving the proposed rule, policy or plan;
(2) Whether the proposed rule, policy or plan is in conformity with the legislative intent of the statute which it is intended to implement, extend, apply, interpret or make specific;
(3) Whether the proposed rule, policy or plan conflicts with any other provision of this code or with any other rule, policy or plan adopted by the same or a different agency;
(4) Whether the proposed rule, policy or plan is necessary to fully accomplish the objectives of the statute under which it was proposed;
(5) Whether the proposed rule, policy or plan is reasonable, especially as it affects the convenience of the general public or of persons particularly affected by it;
(6) Whether the proposed rule, policy or plan could be made less complex or more readily understandable by the general public; and
(7) Whether the proposed rule, policy or plan was proposed is in compliance with the requirements of this article and with any requirements imposed by any other provision of this code or applicable federal law.

(b) The commission shall make annual reports to the Legislature regarding the results of all investigations, studies and reviews pursuant to the provisions of section seven of this article.
CHAPTER 29A. STATE ADMINISTRATIVE PROCEDURES ACT.

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 shall, at a minimum, comply with the notice and public comment and hearing provisions of sections five, six and seven, article three, chapter twenty-nine-a of this code: Provided, That such rules, policies and plans shall be submitted to the Legislative Oversight Commission on Health and Human Resources Accountability, rather than the Legislative Rulemaking Review Committee, for review. A minimum of one public hearing shall be held in each congressional district in the state prior to the submission of any proposed change to a state plan with the federal government and any request for a waiver of a federal program requirement for a state plan or a public assistance program 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: The purpose of this bill is require all rules that are currently exempt from the legislative rulemaking process, policies and state plans of the Department of Health and Human Resources relating to public assistance to undergo notice, public comment and public hearing before review by the Legislative Oversight Commission on Health and Human Resources Accountability and submission to the United States government. The bill authorizes LOCHRA to recommend changes to the department as well as proposing corrective legislation.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

This bill was recommended from passage by the Joint Committee on the Judiciary Committee, during the 2007 Legislative interims.

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