Senate Bill No. 283
(By Senators Walker, Grubb, Macnaughtan, Blatnik, Bailey,
Sharpe, Plymale, Ross, Buckalew, Kimble, Miller, Minear and Deem)
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[Introduced February 8, 1995; referred to the Committee
on Health and Human Resources; and then to the Committee
on Rules.]
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A BILL to amend and reenact sections four and five, article
twenty-nine-c, chapter sixteen of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; to amend
and reenact section one, article three, chapter
twenty-nine-a of said code; and to amend said chapter by
adding thereto a new article, designated article three-c,
all relating to the state health care and human services
programs generally, including, but not limited to,
terminating the uncompensated health care and medicaid
expenditures task force and transferring their duties to the
legislative oversight commission on health and human
resources accountability; creating a legislative oversight
commission on health and human resources accountability;
requiring that the rules of various state agencies within
the department of health and human resources be promulgated
in accordance with article creating the legislative oversight commission on health and human resources
accountability; providing generally for such rulemaking,
including notice requirements, registration with secretary
of state, submission to Legislature, powers and duties of
the commission, withdrawal or modification of rules,
emergency rules, judicial review and other matters; and
exempting prior policy from review by such commission.
Be it enacted by the Legislature of West Virginia:
That sections four and five, article twenty-nine-c, chapter
sixteen of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; that section
one, article three, chapter twenty-nine-a of said code be amended
and reenacted; and that said chapter be further amended by adding
thereto a new article, designated article three-c, all to read as
follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 29C. INDIGENT CARE.
§16-29C-4. Legislative study; appointment of members; expenses;
reports; termination.
Not later than the first day of June, one thousand nine
hundred eighty-five, the president of the Senate and speaker of
the House of Delegates of the West Virginia Legislature shall
appoint a legislative task force on uncompensated health care
and medicaid expenditures which shall meet, study and make
recommendations as herein provided.
The task force shall be composed of three members of the
Senate appointed by the president from the membership of the
Senate standing committee on health and human resources, three
members of the House of Delegates appointed by the speaker from
the membership of the House of Delegates standing committee on
health and human resources, and a number of citizens appointed
jointly by the president and speaker which, in their discretion,
adequately provides for the appropriate representation of the
interests of the providers of health care services, the providers
of health care insurance, state departments involved in the
administration of health care and health care related programs
and the citizens of this state. Of the members of the Senate
appointed by the president, not more than two shall be from the
same political party. Of the members of the House of Delegates
appointed by the speaker, not more than two shall be from the
same political party.
Members originally appointed to the task force shall serve
for terms beginning on the date of appointment and ending on the
thirtieth day of June, one thousand nine hundred ninety-six
ninety-five, unless sooner replaced by the president or the
speaker as applicable, or, in the discretion of the president and
the speaker, unless the work of the task force is completed or
the need for the task force no longer exists prior to that date.
The task force shall cease to exist on the thirtieth day of June,
one thousand nine hundred ninety-six ninety-five. The duties of the task force, as defined in this section, shall be assumed by
the legislative oversight commission on health and human
resources accountability.
The task force shall meet on such dates as may be approved
by the joint committee on government and finance for the regular
meetings of its subcommittees unless approval is first obtained
from the joint committee on government and finance for additional
meetings. The task force shall conduct studies on 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, the extent to which persons in this state forego
needed medical services because of insufficient income and assets
to pay for those services, the extent to which the state is
maximizing available federal programs and moneys in providing
health care services to the citizens of this state, the operation
of the programs and funds created by this article and the roles
of the public, private and private nonprofit sectors in providing
health care services to the citizens of this state. The task
force shall also study the state medicaid program in order to
determine if the state medicaid agency, as the payor of last
resort, is expending maximum effort to identify alternate private
insurance resources for medicaid beneficiaries and shall 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, and 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.
The task force shall file an interim report with the joint
committee on government and finance and the Legislature on the
date of the last meeting of the joint committee on government
and finance prior to commencement of the regular session of the
Legislature in each year before the final report of the task
force is filed with the joint committee on government and finance
and the Legislature on or before the thirtieth day of June, one
thousand nine hundred ninety-six ninety-five.
The members of the task force shall be entitled to
compensation at the rate authorized for members of the
Legislature participating in legislative interim meetings and to
reimbursement for reasonable and necessary expenses actually
incurred in attending meetings of the task force, except that any
employee of the state appointed to the task force is not entitled
to such compensation. Funds necessary for the work of the task
force shall be paid from joint appropriations to the Senate and
House of Delegates but no such funds shall be spent or
obligations incurred in the conduct of such work without prior
approval of the joint committee on government and finance.
§16-29C-5. Effective date and termination date.
This article shall be effective from passage, and,
notwithstanding the provisions of section four of this article,
shall terminate on the thirtieth day of June, one thousand nine
hundred ninety-six ninety-five.
CHAPTER 29A. STATE ADMINISTRATIVE PROCEDURES ACT.
ARTICLE 3. RULE MAKING.
§29A-3-1. Rules to be promulgated only in accordance with this
article.
In addition to other rule-making requirements imposed by law
and except to the extent specifically exempted by the provisions
of this chapter or other applicable law, and except as provided
for in article articles three-a and three-c of this chapter,
every rule and regulation (including any amendment of or rule to
repeal any other rule) shall be promulgated by an agency only in
accordance with this article and shall be and remain effective
only to the extent that it has been or is promulgated in
accordance with this article.
ARTICLE 3A. LEGISLATIVE OVERSIGHT COMMISSION ON HEALTH AND HUMAN
RESOURCES ACCOUNTABILITY.
§29A-3C-1. Findings and purpose.
The Legislature hereby finds and declares that:
(1) A crisis exists in the funding of health and social
programs of this state;
(2) These programs exist to provide federal and state
supported services to citizens in need;
(3) The health and well-being of these citizens is
jeopardized when uncontrolled growth in various programs uses a
disproportionate share of the available funding;
(4) State programs are often developed and implemented with
limited private or federal grant moneys, which require future
funding from the limited state resources; and
(5) The problem is exacerbated when various state agencies
make competing or conflicting policy decisions.
§29A-3C-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 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 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.
§29A-3C-3. Definitions.
As used in this article:
(a) "Agency" means those various agencies, authorities,
boards, committees, commissions or departments of the department
of health and human resources with authority to promulgate
legislative rules pursuant to this chapter that regulate health
care providers, practitioners or consumers; or those offering
social services programs.
(b) "Commission" means the legislative oversight commission
on health and human resources accountability; and
(c) "Department" means the department of health and human
resources.
§29A-3C-4. Rules to be promulgated only in accordance with this
article.
In addition to other rule-making requirements imposed by law and except to the extent specifically exempted by the provisions
of this chapter or other applicable law, every rule (including
any amendment of a rule to repeal any other rule) shall be
promulgated by a health care agency only in accordance with this
article and shall be and remain effective only to the extent that
it has been or is promulgated in accordance with this article.
§29A-3C-5. Limitations on authority to exercise rule-making
power.
(a) Except when, and to the extent that, this chapter or any
other provision of law now or hereafter made expressly exempts an
agency, or a particular grant of the rule-making power, from the
provisions of this article, every grant of rule-making power to
an executive or administrative officer, office or agency,
heretofore provided, shall be construed and applied to be
effective only:
(1) If heretofore lawfully exercised in accordance with the
prior provisions of this chapter and the resulting rule has not
been revoked or invalidated by the provisions hereof or by the
agency; or
(2) If exercised in accordance with the provisions hereof.
(b) No executive or administrative agency shall be deemed
to have the power and authority to promulgate a legislative rule
without compliance with this article unless: (1) The provision
of this code, heretofore or hereafter enacted, granting such
power and authority, expressly exempts its exercises from legislative rule-making review prior to promulgation; or (2) the
grant of such power and authority is exempted from the
application of this chapter by the express provisions of this
chapter. To the extent any such grant of power and authority,
not so exempt, shall be deemed to exceed the limits and
provisions of this article, such power and authority to
promulgate legislative rules is hereby revoked.
§29A-3C-6. Rules of procedure required.
In addition to other rule-making requirements imposed by
law:
(a) Each agency shall adopt procedural rules governing the
formal and informal procedures prescribed or authorized by this
chapter. Procedural rules shall include rules of practice before
the commission, together with forms and instructions.
(b) To assist interested persons dealing with it, each
agency shall, so far as deemed practicable, supplement its rules
or regulations with descriptive statements of its procedures.
§29A-3C-7. Filing of proposed procedural rules and interpretive
rules.
(a) When an agency proposes a procedural rule or an
interpretive rule, the agency shall file in the state register a
notice of its action, including the text of the rule as proposed.
(b) All proposed rules filed under subsection (a) of this
section shall have a fiscal note attached itemizing the cost of
implementing the rules as they relate to this state and to persons affected by the rules. and regulations Such fiscal note
shall include all information included in a fiscal note for
either house of the Legislature and a statement of the economic
impact of the rule on the state or its residents. The objectives
of the rules shall be clearly and separately stated in the fiscal
note by the agency issuing the proposed rules. No procedural or
interpretive rule shall be void or voidable by virtue of
noncompliance with this subsection.
§29A-3C-8. Notice of proposed rule making.
When an agency proposes to promulgate a rule other than an
emergency rule, it shall file with the secretary of state, for
publication in the state register, a notice of its action,
including therein any request for the submission of evidence to
be presented on any factual determinations or inquiries required
by law to promulgate such rule. At the time of filing the notice
of its action, the agency shall also file with the secretary of
state a copy of the full text of the rule proposed, a fiscal note
as defined in subsection (b) of section seven of this article.
If the agency is considering alternative draft proposals, it may
also file with the secretary of state the full text thereof.
The notice shall fix a date, time and place for the receipt
of public comment in the form of oral statements, written
statements, and documents bearing upon any findings and
determinations which are a condition precedent to the final
approval by the agency of the proposed rule, and shall contain a general description of the issues to be decided. If no specific
findings and determinations are required as a condition precedent
to the final approval by the agency, the notice shall fix a date,
time and place for receipt of general public comment on the
proposed rule.
If findings and determinations are a condition precedent to
the promulgation of such rule, then an opportunity for general
public comment on the merits of the rule shall be afforded after
such findings and determinations are made. In such event, notice
of the hearing, or of the period for receiving public comment on
the proposed rule shall be attached to and filed as a part of the
findings and determinations of the agency when filed in the state
register.
In any hearing for public comment on the merits of the rule,
the agency may limit presentations to written material. The
time, date and place fixed in the notice shall constitute the
last opportunity to submit any written material relevant to any
hearing, all of which may be earlier submitted by filing with the
agency. After the public hearing or the close of the public
comment period, whichever is later, the agency may not permit the
filing or receipt of, nor shall it consider, any attempted ex
parte communications directed to it in the form of additional
comment, prior to the submission of its final agency-approved
rule to the commission pursuant to the provisions of section
fifteen of this article.
The agency may also, at its expense, cause to be published
as a Class I legal publication in every county of the state, any
notice required by this section.
Any citizen or other interested party may appear and be
heard at such hearings as are required by this section.
§29A-3C-9. Filing findings and determinations for rules in state
register; evidence deemed public record.
(a) Incident to fixing a date for public comment on a
proposed rule, the agency shall promulgate the findings and
determinations required as a condition precedent thereto, and
state fully and succinctly the reasons therefor and file such
findings and determinations in the state register. If the agency
amends the proposed rule as a result of the evidence or comment
presented pursuant to section eight, such amendment shall be
filed with a description of any changes and statement listed for
the amendment.
(b) The statement of reasons and a transcript of all
evidence and public comment received pursuant to notice are
public records and shall be carefully preserved by the agency and
be open for public inspection and copying for a period of not
less than five years from the date of the hearing.
§29A-3C-10. Notice of hearings.
Notices of hearings required by sections eight and nine of
this article shall be filed in the state register not less than
thirty nor more than sixty days before the date of such hearing or the last day specified therein for receiving written material.
Any hearing may be continued from time to time and place to place
by the commission which shall have the effect of extending the
last day for receipt of evidence or public comment. Notice of
such continuance shall be promptly filed thereafter in the state
register.
§29A-3C-11. Adoption of procedural and interpretive rules.
A procedural and interpretive rule, shall be considered by
the agency for adoption not later than six months after the close
of public comment and a notice of withdrawal or adoption shall be
filed in the state register within that period. Failure to file
such notice shall constitute withdrawal and the secretary of
state shall note such failure in the state register immediately
upon the expiration of the six month period.
A procedural or interpretive rule may be amended by the
agency prior to final adoption without further hearing or public
comment. No such amendment may change the main purpose of the
rule. If the fiscal implications have changed since the rule was
proposed, a new fiscal note shall be attached to the notice of
filing. Upon adoption of the rule (including any such amendment)
the agency shall file the text of the adopted procedural or
interpretive rule with its notice of adoption in the state
register and the same shall be effective on the date specified in
the rule or thirty days after such filing, whichever is later.
§29A-3C-12. Proposal of legislative rules.
When an agency proposes a legislative rule, other than an
emergency rule, it shall be deemed to be applying to the
Legislature for permission, to be granted by law, to promulgate
such rule as approved by the agency for submission to the
Legislature or as amended and authorized by the Legislature by
law.
An agency proposing a legislative rule, other than an
emergency rule, after filing the notice of proposed rule making
required by the provisions of section eight of this article,
shall then proceed as in the case of a procedural and
interpretive rule to the point of, but not including, final
adoption. In lieu of final adoption, the agency shall finally
approve the proposed rule, including any amendments, for
submission to the Legislature and file such notice of approval in
the state register and with the legislative oversight commission
on health and human resources accountability.
Such final agency approval of the rule under this section
is deemed to be approval for submission to the Legislature only
and does not give any force and effect to the proposed rule. The
rule shall have full force and effect only when authority for
promulgation of the rule is granted by an act of the Legislature
and the rule is promulgated pursuant to the provisions of section
seventeen of this article.
§29A-3C-13. Creation of a legislative oversight commission on
health and human resources accountability.
(a) There is hereby created a joint commission of the
Legislature known as the legislative oversight commission on
health and human resources accountability to: (1) Review all
legislative rules of the several health care agencies, unless
exempt from rule-making review by federal law; (2) review such
other rules as the commission deems appropriate; and (3) review
program development by the various agencies of the department of
health and human resources if those programs impact the physical,
emotional or social well-being of the citizens of West Virginia.
The commission shall be composed of six members of the Senate
appointed by the president of the Senate and six members of the
House of Delegates appointed by the speaker of the House of
Delegates. No more than five of the six members appointed by the
president of the Senate and the speaker of the House of
Delegates, respectively, may be members of the same political
party. In addition, the president of the Senate and speaker of
the House of Delegates shall be ex officio nonvoting members of
the commission and shall designate the cochairpersons. At least
one of the Senate appointees and one of the House of Delegates
appointees shall be the chairperson of the committee on health
and human resources of the Senate and House of Delegates,
respectively, and at least one of the Senate appointees and at
least one of the House of Delegates appointees shall be a member
of the committee on finance of the Senate and House of Delegates,
respectively. The members shall serve until their successors shall have been appointed as heretofore provided. Members of the
commission shall receive such compensation and expenses as
provided in article two-a, chapter four of this code. Such
expenses and all other expenses including those incurred in the
employment of legal, technical, investigative, clerical,
stenographic, advisory and other personnel shall be paid from an
appropriation to be made expressly for the legislative oversight
commission on health and human resources accountability, but if
no such appropriation be made, such expenses shall be paid from
the appropriation under "Account No. 1030 for Joint Expenses,"
but no expense of any kind whatever payable under said account
for joint expenses shall be incurred unless first approved by the
joint committee on government and finance. The commission shall
meet at any time both during sessions of the Legislature and in
the interim.
(b) The commission may adopt such rules of procedure as it
considers necessary for the submission, presentation and
consideration of rules.
§29A-3C-14. Additional powers and duties; subpoena powers.
(a) In addition to the powers and duties conferred upon the
commission pursuant to the provisions of this article, the
commission shall make a continuing investigation, study and
review of the practices, policies and procedures of the health
care and social services agencies and of any and all matters
related to health and social policy in the state and shall make annual reports to the Legislature of the results of such
investigation, study and review.
(b) These reports shall describe and evaluate in a concise
manner:
(1) The major activities of the several health and human
resources agencies for the fiscal year immediately past,
including important policy decisions reached on initiatives
undertaken during that year, especially as such activities,
decisions and initiatives relate to: (A) The implementation of
health care or social services programs; (B) improving the
accessibility of appropriate health care in all areas of this
state; (C) improving the health status of the citizens of this
state; and (D) coordinating social services programs to reflect
a cohesive delivery of transitional services.
(2) Other information considered by the commission to be
important, including recommendations for statutory, fiscal or
policy reforms and reasons for such recommendations.
Further, these reports may specify in what manner said
practices, policies and procedures may or should be modified to
satisfy the goal of efficient and effective delivery of health
and social services programs and to improve the quality of health
and social services available in this state.
The commission may meet as often as may be necessary and
employ such professional, clerical and technical personnel as it
considers necessary to perform effectively the duties herein prescribed.
(c) The commission shall conduct a study to determine
whether the bureaucracies of the state department of health and
human resources effectively and efficiently deliver services to
the citizens of this state. The commission may request
assistance from the legislative auditor to conduct this study.
(d) For purposes of carrying out its duties, the commission
is hereby empowered and authorized to examine witnesses and to
subpoena such persons and books, records, documents, papers or
any other tangible things as it believes should be examined to
make a complete investigation. All witnesses appearing before
the commission shall testify under oath or affirmation, and any
member of the commission may administer oaths or affirmations to
such witnesses. To compel the attendance of witnesses at such
hearings or the production of any books, records, documents,
papers or any other tangible thing, the commission is hereby
empowered and authorized to issue subpoenas, signed by one of the
cochairpersons, in accordance with section five, article one,
chapter four of this code. Such subpoenas shall be served by any
person authorized by law to serve and execute legal process and
service shall be made without charge. Witnesses subpoenaed to
attend hearings shall be allowed the same mileage and per diem as
is allowed witnesses before any petit jury in this state.
If any person subpoenaed to appear at any hearing shall
refuse to appear or to answer inquiries there propounded, or shall fail or refuse to produce books, records, documents, papers
or any other tangible thing within his control when the same are
demanded, the commission shall report the facts to the circuit
court of Kanawha County or any other court of competent
jurisdiction and such court may compel obedience to the subpoena
as though such subpoena had been issued by such court in the
first instance.
29A-3C-15. Submission of legislative rules to the legislative
oversight commission on health and human resources
accountability.
(a) When an agency finally approves a proposed legislative
rule for submission to the Legislature, pursuant to the
provisions of section twelve of this article, the agency shall
submit to the legislative oversight commission on health and
human resources accountability at its offices or at a regular
meeting of such commission fifteen copies of: (1) The full text
of the legislative rule as finally approved by the agency, with
new language underlined and with language to be deleted from any
existing rule stricken through but clearly legible; (2) a brief
summary of the content of the legislative rule and a description
and a copy of any existing rule which the agency proposes to
amend or repeal; (3) a statement of the circumstances which
require the rule; (4) a fiscal note containing all information
included in a fiscal note for either house of the Legislature and
a statement of the economic impact of the rule on the state or its residents; and (5) any other information which the commission
may request or which may be required by law.
(b) The commission shall review each proposed legislative
rule 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 legislative rule;
(2) Whether the proposed legislative rule is in conformity
with the legislative intent of the statute which the rule is
intended to implement, extend, apply, interpret or make specific;
(3) Whether the proposed legislative rule conflicts with any
other provision of this code or with any other rule adopted by
the same or a different agency;
(4) Whether the proposed legislative rule is necessary to
fully accomplish the objectives of the statute under which the
proposed rule was promulgated;
(5) Whether the proposed legislative rule is reasonable,
especially as it affects the convenience of the general public or
of persons particularly affected by it;
(6) Whether the proposed legislative rule could be made less
complex or more readily understandable by the general public; and
(7) Whether the proposed legislative rule was promulgated
in compliance with the requirements of this article and with any
requirements imposed by any other provision of this code.
(c) After reviewing the legislative rule, the commission
shall recommend that the Legislature:
(1) Authorize the promulgation of the legislative rule; or
(2) Authorize the promulgation of part of the legislative
rule; or
(3) Authorize the promulgation of the legislative rule with
certain amendments; or
(4) Recommend that the proposed rule be withdrawn.
The commission shall file notice of its action in the state
register and with the agency proposing the rule: Provided, That
when the commission makes the recommendations of subdivision (2),
(3) or (4) of this subsection, the notice shall contain a
statement of the reasons for such recommendation.
(d) When the commission recommends that a rule be
authorized, in whole or in part, by the Legislature, the
commission shall instruct its staff or the office of legislative
services to draft a bill authorizing the promulgation of all or
part of the legislative rule, and incorporating any amendments
the commission desires. If the commission recommends that the
rule not be authorized, it shall include in its report a draft of
a bill authorizing promulgation of the rule together with a
recommendation. Any draft bill prepared under this section shall
contain a legislative finding that the rule is within the
legislative intent of the statute which the rule is intended to
implement, extend, apply or interpret and shall be available for any member of the Legislature to introduce to the Legislature.
§29A-3C-16. Submission of legislative rules to Legislature.
(a) No later than forty days before the sixtieth day of each
regular session of the Legislature, the cochairs of the
legislative oversight commission on health and human resources
accountability shall submit to the clerk of the respective houses
of the Legislature copies of all proposed legislative rules which
have been submitted to and considered by the commission pursuant
to the provisions of section fifteen of this article and which
have not been previously submitted to the Legislature for study,
together with the recommendations of the commission with respect
to such rules, a statement of the reasons for any recommendation
that a rule be amended or withdrawn, and a statement that a bill
authorizing the legislative rule has been drafted by the staff of
the commission or by legislative services pursuant to section
fifteen of this article. The cochairs of the commission may also
submit such rules at the direction of the commission at any time
before or during a special session in which consideration thereof
may be appropriate. The commission may withhold from its report
any proposed legislative rule which was submitted to the
commission fewer than two hundred ten days before the end of the
regular session. The clerk of each house shall submit the report
to his house at the commencement of the next session.
All bills introduced authorizing the promulgation of a rule
may be referred by the speaker of the House of Delegates and by the president of the Senate to appropriate standing committees of
the respective houses for further consideration or the matters
may be otherwise dealt with as each house or its rules provide.
The Legislature may by act authorize the agency to adopt a
legislative rule incorporating the entire rule, or may authorize
the agency to adopt a rule with any amendments which the
Legislature shall designate. The clerk of the house originating
such act shall forthwith file a copy of any bill of authorization
enacted with the secretary of state, the agency proposing such
rule and the clerk of each house may prepare and file a synopsis
of legislative action during any session on any proposed rule
submitted to the house during such session for which authority to
promulgate was not by law provided during such session. In
acting upon the separate bills authorizing the promulgation of
rules, the Legislature may, by amendment or substitution, combine
the separate bills of authorization insofar as the various rules
authorized therein are proposed by agencies which are placed
under the administration of one of the single separate executive
departments identified under the provision of section two,
article one, chapter five-f of this code, or, the Legislature may
combine the separate bills of authorization by agency or agencies
within an executive department. The foregoing provisions
relating to combining separate bills of authorization according
to department or agency are not intended to restrict the
permissible breadth of bills of authorization and do not preclude the Legislature from otherwise combing various bills of
authorization which have a unity of subject matter. Any number
of provisions may be included in a bill of authorization, but the
single object of the bill shall be to authorize the promulgation
of proposed legislative rules.
(b) If the Legislature fails during its regular session to
act upon all or part of any legislative rule which was submitted
to it by the legislative oversight commission on health and human
resources accountability during such session, no agency may
thereafter issue any rule or directive or take other action to
implement such rule or part thereof unless and until otherwise
authorized to do so.
(c) Nothing herein shall be construed to prevent the
Legislature by law from authorizing, or authorizing and
directing, an agency to promulgate legislative rules not proposed
by the agency or upon which some procedure specified in this
chapter is not yet complete.
(d) Whenever the Legislature is convened by proclamation of
the governor, upon his or her own initiative or upon application
of the members of the Legislature, or whenever a regular session
of the Legislature is extended or convened by the vote or
petition of its members, the Legislature may by act enacted
during such extraordinary or extended session authorize, in whole
or in part, any legislative rule whether submitted to the
legislative oversight commission on health and human resources accountability or not, if legislative action on such rule during
such session is a lawful order of business.
(e) Whenever a date is required by this section to be
computed in relation to the end of a regular session of the
Legislature, such date shall be computed without regard to any
extensions of such session occasioned solely by the proclamation
of the governor.
(f) Whenever a date is required to be computed from or is
fixed by the first day of a regular session of the Legislature,
it shall be computed or fixed in the year one thousand nine
hundred eighty-four, and each fourth year thereafter without
regard to the second Wednesday of January of such years.
§29A-3C-17. Adoption of legislative rules; effective date.
(a) Except as the Legislature may by law otherwise provide,
within sixty days after the effective date of an act authorizing
promulgation of a legislative rule, the agency shall promulgate
the rule only in conformity with the provisions of law
authorizing and directing the promulgation of such rule.
(b) A legislative rule authorized by the Legislature shall
become effective thirty days after such filing in the state
register, or on the effective date fixed by the authorizing act
or if none is fixed by law, such later date not to exceed ninety
days, as is fixed by the agency.
(c) The secretary of state shall note in the state register
the effective date of an authorized and promulgated legislative rule, and shall promptly publish the duly promulgated rule in a
code of state rules maintained by his or her office.
§29A-3C-18. Withdrawal or modification of proposed rules.
(a) Any legislative rule proposed by the agency may be
withdrawn any time before passage of a law authorizing or
authorizing and directing its promulgation, but no such action
shall be construed to affect the validity, force or effect of a
law enacted authorizing or authorizing and directing the
promulgation of an authorized legislative rule or exercising
compliance with such law. The agency shall file a notice of any
such action in the state register.
(b) At any time before a proposed legislative rule has been
submitted by the legislative oversight commission on health and
human resources accountability to the Legislature pursuant to the
provisions of section sixteen of this article, the agency may
modify the proposed rule to meet the objections of the
commission. The agency shall file in the state register a notice
of its modifying action including a copy of the modified rule,
but shall not be required to comply with any provisions of this
article requiring opportunity for public comment or taking of
evidence with respect to such modification. If a legislative
rule has been withdrawn, modified and then resubmitted to such
commission, the rule shall be considered to have been submitted
to such commission on the date of such resubmission.
§29A-3C-19. Emergency legislative rules; procedure for
promulgation; definition.
(a) Any agency with authority to propose legislative rules
may, without hearing, find that an emergency exists requiring
that emergency rules be promulgated and promulgate the same in
accordance with this section. 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 twenty of this
article or upon the forty-second day following such filing,
whichever occurs first. Such emergency rules may adopt, amend or
repeal any legislative rule, but the circumstances constituting
the emergency requiring such adoption, amendment or repeal shall
be stated with particularity and be subject to de novo review by
any court having original jurisdiction of an action challenging
their validity. Fifteen copies of the rules and of the required
statement shall be filed forthwith with the legislative oversight
commission on health and human resources accountability.
An emergency rule shall be effective for not more than
fifteen months and shall expire earlier if any of the following
occurs:
(1) The secretary of state, acting under the authority
provided for in section twenty of this article, disapproves the
emergency rule because: (A) The emergency rule or an amendment to the emergency rule exceeds the scope of the law authorizing or
directing the promulgation thereof; (B) an emergency does not
exist justifying the promulgation of the emergency rule; or (C)
the emergency rule was not promulgated in compliance with the
provisions of this section. An emergency rule may not be
disapproved pursuant to the authority granted by paragraph (A) or
(B) of this subdivision on the basis that the secretary of state
disagrees with the underlying public policy established by the
Legislature in enacting the supporting legislation. An emergency
rule which would otherwise be approved as being necessary to
comply with a time limitation established by this code or by a
federal statute or regulation may not be disapproved pursuant to
the authority granted by paragraph (A) or (B) of this subdivision
on the basis that the agency has failed to file the emergency
rule prior to the date fixed by such time limitation. When the
supporting statute specifically directs an agency to promulgate
an emergency rule, or specifically finds that an emergency exists
and directs the promulgation of an emergency rule, the emergency
rule may not be disapproved pursuant to the authority granted by
paragraph (B) of this subdivision. An emergency rule may not be
disapproved on the basis that the Legislature has not
specifically directed an agency to promulgate the emergency rule,
or has not specifically found that an emergency exists and
directed the promulgation of an emergency rule.
(2) The agency has not previously filed and fails to file a notice of public hearing on the proposed rule within thirty
days of the date the proposed rule was filed as an emergency
rule; in which case the emergency rule expires on the
thirty-first day.
(3) The agency has not previously filed and fails to file
the proposed rule with the legislative oversight commission on
health and human resources accountability within ninety days of
the date the proposed rule was filed as an emergency rule; in
which case the emergency rule expires on the ninety-first day.
(4) The Legislature has authorized or directed promulgation
of an authorized legislative rule dealing with substantially the
same subject matter since such emergency rule was first
promulgated, and in which case the emergency rule expires on the
date the authorized rule is made effective.
(5) The Legislature has, by law, disapproved of such
emergency rule; in which case the emergency rule expires on the
date the law becomes effective.
(b) Any amendment to an emergency rule made by the agency
shall be filed in the state register and does not constitute a
new emergency rule for the purpose of acquiring additional time
or avoiding the expiration dates in subdivision (1), (2), (3),
(4) or (5), subsection (a) of this section: Provided, That such
emergency amendment shall become effective upon the approval of
the secretary of state in accordance with section twenty of this
article or upon the forty-second day following such filing, whichever occurs first.
(c) Once an emergency rule expires due to the conclusion of
fifteen months or due to the effect of subdivision (2), (3), (4)
or (5), subsection (a) of this section, the agency may not refile
the same or similar rule as an emergency rule.
(d) Emergency legislative rules previously filed and
currently in effect under the provisions of section fifteen,
article three of this chapter may be refiled under the provisions
of this section if the agency filing such emergency rule is
directed by the provisions of this article to file future
proposed legislative rules with the legislative oversight
commission on health and human resources accountability.
(e) The provision of this section shall not be used to avoid
or evade any provision of this article or any other provisions of
this code, including any provisions for legislative review and
approval of proposed rules. Any emergency rule promulgated for
any such purpose may be contested in a judicial proceeding before
a court of competent jurisdiction.
(f) The legislative oversight commission on health and human
resources accountability may review any emergency rule to
determine: (1) Whether the agency has exceeded the scope of its
statutory authority in promulgating the emergency rule; (2)
whether there exists an emergency justifying the promulgation of
such rule; and (3) whether the rule was promulgated in compliance
with the requirements and prohibitions contained in this section. The commission may recommend to the agency, the Legislature, or
the secretary of state such action as it may deem proper.
(g) For the purposes of this section, an emergency exists
when the promulgation of a rule is necessary: (1) For the
immediate preservation of the public peace, health, safety or
welfare; (2) to comply with a time limitation established by this
code or by a federal statute or regulation; or (3) to prevent
substantial harm to the public interest.
§29A-3C-20. Disapproval of emergency rules by the secretary of
state; judicial review.
(a) Upon the filing of an emergency rule or filing of an
amendment to an emergency rule by an agency, under the provisions
of section nineteen of this article, the secretary of state shall
review such rule or such amendment and, within forty-two days of
such filing, shall issue a decision as to whether or not such
emergency rule should be disapproved.
(b) The secretary of state shall disapprove an emergency
rule or an amendment to an emergency rule if he determines:
(1) The emergency rule or amendment to an emergency rule
agency exceeds the scope of the law authorizing or directing the
promulgation thereof; or
(2) That an emergency does not exist justifying the
promulgation of the rule or the filing of an amendment to the
emergency rule; or
(3) That the emergency rule or amendment to the emergency rule was not promulgated in compliance with the provisions of
section nineteen of this article.
(c) If the secretary of state determines, based upon the
contents of the rule or the supporting information filed by the
agency, that the emergency rule, or an amendment to an emergency
rule, should be disapproved, he or she may disapprove such rule
or amendment without further investigation, notice or hearing.
If, however, secretary of state concludes that the information
submitted by the agency is insufficient to allow a proper
determination to be made as to whether the emergency rule, or
amendment to an emergency rule, should be disapproved, he or she
may make further investigation, including, but not limited to,
requiring the agency or other interested parties to submit
additional information or comment or fixing a date, time and
place for the taking of evidence on the issues involved in making
a determination under the provisions of this section.
(d) The determination of the secretary of state shall be
reviewable by the supreme court of appeals under its original
jurisdiction, based upon a petition for a writ of mandamus,
prohibition or certiorari, as appropriate. Such proceeding may
be instituted by:
(1) The agency which promulgated the emergency rule;
(2) A member of the Legislature; or
(3) Any person whose personal property interests will be
significantly affected by the approval or disapproval of the emergency rule by the secretary of state.
§29A-3C-21. Legislative review of procedural rules, interpretive
rules and existing legislative rules.
The legislative oversight commission on health and human
resources accountability may review any procedural rules,
interpretive rules or existing legislative rules and may make
recommendations concerning such rules to the Legislature, or to
the agency or to both the Legislature and the agency.
§29A-3C-22. Prior rules.
Any rule lawfully promulgated prior to the effective date
of this chapter shall remain in full force and effect until:
(1) Such rule is expressly made ineffective by the
provisions of this chapter; or
(2) Such rule should expire by reason of failure to refile
the same as provided in section five of article two, or expires
pursuant to its own terms and provisions lawfully made before the
effective date of this section; or
(3) Such rule is repealed by the lawful act of the agency
in conformity with this chapter; or
(4) Such rule is invalidated by an act of the Legislature
or the force and effect of another law.
NOTE: This bill establishes a legislative oversight
commission on health and human resources accountability.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language
that would be added.
§29A-3C is new; therefore, strike-throughs and underscoring
have been omitted.