HB2589 HH&HR AM 2-10

CR 3338 

            The Committee on Health and Human Resources moves to amend the bill on page 2, line 1, striking everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 2. COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES AND             RESPONSIBILITIES GENERALLY.

§9-2-13. Judicial review of decisions of contested cases.

            (a) For purposes of this section:

            (1) "Agency" means the Board of Review or the Bureau for Medical Services, as the case may be, that has been named as a party to any proceeding on appeal made pursuant to the provisions of this section.

            (2) "Board of Review" or "board" means the West Virginia Department of Health and Human Resources Board of Review operating pursuant to the provisions of subdivision thirteen, section six of this article.

            (3) "Bureau" means the Department of Health and Human Resources Bureau for Medical Services which is the single state agency for Medicaid services in West Virginia.

            (4) “Final decision” mean a decision for which the availability of an administrative appeal has been exhausted.

            (b) A party adversely affected by a final decision of the agency may seek judicial review of that decision.

            (c) Proceedings for review shall be instituted by filing a petition, at the election of the petitioner, in either the circuit court of Kanawha County, West Virginia or in the circuit court of the county in which the petitioner or any one of the petitioners resides or does business within thirty days after the date upon which such party received notice of the final order or decision of the agency. A copy of the petition shall be served upon the agency and all other parties of record by certified mail. The petition shall state whether the appeal is taken on questions of law or questions of fact, not both. No appeal bond is required.

            (d) The filing of the petition for appeal does not stay or supercede enforcement of the final decision of the agency. The agency may voluntarily stay such enforcement, and the appellant, at any time after the filing of the petition for appeal, may apply to the circuit court for a stay of or to supersede the final decision. Pending the appeal, the circuit court may grant a stay or supersede the final decision upon such terms as it considers proper.

            (e) Within fifteen days after receipt of a copy of the petition by the agency, or within such further time as the circuit court may allow, the agency shall prepare and transmit to the circuit court the original or a certified copy of the entire record of the proceeding under review. This shall include a transcript of all reported testimony and all exhibits, papers, motions, documents, evidence, records, agency staff memoranda and data used in consideration of the case, all briefs, memoranda, papers and records considered by the agency in the underlying proceeding, and a statement of matters officially noted. By stipulation of the parties, the record may be shortened. If the complete record is not filed with the circuit court within the time provided in this section, the appellant may apply to the circuit court to have the case docketed, and the circuit court shall order the agency to file the record.

            (f) The cost of preparing the official record shall be assessed as part of the costs of the appeal. The appellant shall provide security for costs satisfactory to the circuit court. Any party unreasonably refusing to stipulate to limit the record may be assessed by the circuit court for the additional costs involved. Upon demand by any party to the appeal, the agency shall furnish, at cost to the requesting party, a copy of the official record.

            (g) The circuit court shall hear appeals upon assignments of error filed in the petition or set out in the briefs filed by the parties. The circuit court, in its discretion, may disregard errors not argued by brief or may consider errors that are not assigned or argued. The circuit court shall fix a date and time for the hearing on the petition. Unless otherwise agreed by the parties, the circuit court may not schedule the hearing sooner than ten days after the filing of the petition for appeal. The petitioner shall provide notice of the date and time of the hearing to the agency.

            (h) In cases involving alleged irregularities in procedure before the agency that are not shown in the record, the circuit court may take additional testimony. Otherwise, the circuit court shall review the appeal without a jury and may only consider the official record provided pursuant to the requirements of this section. The circuit court may hear oral arguments and require written briefs.

            (i) The circuit court may affirm the final decision or order of the agency or remand the matter for further proceedings. The circuit court may reverse, vacate or modify the final decision or order of the agency only if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, decision or order are:

            (1) In violation of constitutional or statutory provisions;

            (2) In excess of the statutory authority or jurisdiction of the agency;

            (3) Made upon unlawful procedures;

            (4) Affected by other error of law;

            (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or

            (6) Arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion.

            (k) The judgment of the circuit court is final unless reversed, vacated or modified on appeal to the West Virginia Supreme Court of Appeals.

            (l) This process is the exclusive remedy for judicial review of final decisions of the Board of Review and the Bureau for Medical Services.”