WV Code § 9-2-13 (2021)
2021 West Virginia Code|Chapter 9. Human Services|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 §9-2-6 (13) of this code.(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.(b) The board shall provide a fair, impartial and expeditious grievance and appeal process to applicants or recipients of state assistance, federal assistance, federal-state assistance or welfare assistance, as defined in §9-1-1 et seq. of this code. The bureau shall provide a fair, impartial and expeditious grievance and appeal process to providers of Medicaid services.(c) Any party adversely affected or aggrieved by a final decision or order of the agency may seek judicial review of that decision.(d) 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, or with the judge thereof in vacation, 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 registered or certified mail. The petition shall state whether the appeal is taken on questions of law or questions of fact, or both. No appeal bond is required to effect any such appeal.(e) The filing of the petition for appeal does not stay or supersede enforcement of the final decision or order 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 of Kanawha County, or in the circuit court of the county in which the petitioner or any one of the petitioners resides or does business, for a stay of or to supersede the final decision or order. Pending the appeal, the circuit court may grant a stay or supersede the order upon such terms as it considers proper.(f) Within 15 days after receipt of a copy of the petition by the agency, or within such further time as the court may allow, the agency shall prepare and transmit to the circuit court of Kanawha County, or in the circuit court of the county in which the petitioner or any one of the petitioners resides or does business, the original or a certified copy of the entire record of the proceeding under review: Provided, That all records prepared and transmitted that involve a minor shall be filed under seal. 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. In the event the complete record is not filed with the court within the time provided for in this section, the appellant may apply to the court to have the case docketed and the court shall order the agency to file the record.(g) 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 court. Any party unreasonably refusing to stipulate to limit the record may be assessed by the 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.(h) The court shall hear appeals upon assignments of error filed in the petition or set out in the briefs filed by the parties. The court may disregard errors not argued by brief or may consider errors that are not assigned or argued. The court shall fix a date and time for the hearing on the petition. Unless otherwise agreed by the parties, the court may not schedule the hearing sooner than 10 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.(I) In cases involving alleged irregularities in procedure before the agency that are not shown in the record, the 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 court may hear oral arguments and require written briefs.(j) The court may affirm the final decision or order of the agency or remand the matter for further proceedings. The 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) The process established by this section is the exclusive remedy for judicial review of final decisions of the Board of Review and the Bureau for Medical Services.