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Introduced Version Senate Bill 5 History

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WEST virginia Legislature

2018 regular session

Introduced

Senate Bill 5

By Senators Trump, Cline, Woelfel, and Takubo

[Introduced January 10, 2018; Referred
to the Committee on Health and Human Resources; and then to the Committee on the Judiciary]

A BILL to amend and reenact §9-7-1, §9-7-3, §9-7-6, and §9-7-6a of the Code of West Virginia, 1931, as amended, all relating to Medicaid fraud and abuse; Medicaid Fraud Control Unit; transferring the Medicaid Fraud Control Unit, all powers and duties of the unit and employees of the unit from the Department of Health and Human Resources to the Attorney General effective October 1, 2018; requiring, on or before December 31, 2021, that the Legislative Auditor study and report to the Joint Committee on Government and Finance on the performance of the Medicaid Fraud Control Unit within the Office of the Attorney General compared to the performance of the unit while established within the Department of Health and Human Resources; requiring the Department of Health and Human Resources cooperate with and provide information to the Attorney General on Medicaid fraud and abuse investigations, prosecutions or civil actions; providing that a civil action related to Medicaid fraud and abuse may be prosecuted and maintained on behalf of the Department of Health and Human Resources by the Attorney General or by an attorney in contract with or employed by the Attorney General; providing that a civil action related to Medicaid fraud and abuse may be prosecuted and maintained by a prosecuting attorney and the prosecuting attorney’s assistants or by any attorney contracted with or employed by the Department of Health and Human Resources if the Attorney General declines to prosecute and maintain such action; and exempting the Attorney General and employees or agents from civil liability for certain good faith actions.

Be it enacted by the Legislature of West Virginia:


ARTICLE 7. FRAUD AND ABUSE IN THE MEDICAID PROGRAM.


§9-7-1. Legislative purpose and findings; powers and duties of fraud control unit; transfer to the Attorney General; legislative report.

(a) It is the purpose of the Legislature to continue the Medicaid Fraud Control Unit previously established within the West Virginia Department of Health and Human Resources and to provide it with the responsibility and authority for investigating and controlling fraud and abuse of the medical programs of the State Department of Health and Human Resources which have been established pursuant to section two, article four of this chapter: Provided, That effective October 1, 2018, the Medicaid Fraud Control Unit shall be transferred to the Office of the Attorney General pursuant to subsection (c) of this section. It is the finding of the Legislature that substantial sums of money have been lost to the state and federal government in the operation of the medical programs of the state due to the overpayment of moneys to medical providers. Such overpayments have been the result of both the abuse of and fraud in the reimbursement process.

(b) The Medicaid Fraud Control Unit of the State Department of Health and Human Resources shall be continued and shall have the following powers and duties:

(1) The investigation and referral for prosecution of all violations of applicable state and federal laws pertaining to the provision of goods or services under the medical programs of the state including the Medicaid program.

(2) The investigation of abuse, neglect or financial exploitation of residents in board and care facilities and patients in health care facilities which receive payments under the medical programs of the state.

(3) To cooperate with the federal government in all programs designed to detect and deter fraud and abuse in the medical programs of the state.

(4) To employ and train personnel to achieve the purposes of this article and to employ legal counsel, investigators, Auditors and clerical support personnel, and such other personnel as are deemed necessary from time to time to accomplish the purposes herein.

(c) Effective October 1, 2018, the Medicaid Fraud Control Unit previously established within the Department of Health and Human Resources shall be transferred to the Office of the Attorney General. All rights, responsibilities, powers and duties of the unit shall be transferred to the Office of the Attorney General, including the administration and authority of the Medicaid Fraud Control Fund. All employees of the Medicaid Fraud Control Unit shall be transferred to and become employees of the Attorney General at their existing hourly rate or salary and with all accrued benefits. The Medicaid Fraud Control Unit’s authorities, powers, and duties shall remain unchanged by this subsection.

(d) On or before December 31, 2021, the Legislative Auditor shall study and report to the Joint Committee on Government and Finance on the performance of the Medicaid Fraud Control Unit within the Office of the Attorney General during the previous three years compared to the performance of the unit while it was established within the Department of Health and Human Resources.


§9-7-3. Investigations; procedure.

(a) When the unit has credible information that indicates a person has engaged in an act or activity which is subject to prosecution under this article, the unit may make an investigation to determine if the act has been committed and, to the extent necessary for such purpose, the Secretary Attorney General or an employee of the unit designated by the Secretary Attorney General may administer oaths or affirmations and issue subpoenas for witnesses and documents relevant to the investigation, including information concerning the existence, description, nature, custody, condition, and location of any book, record, document, or other tangible thing and the identity and location of persons having knowledge of relevant facts or any matter reasonably calculated to lead to the discovery of admissible evidence.

When the unit has probable cause to believe that a person has engaged in an act or activity which is subject to prosecution under this article, or §29-2-61 of this code, either before, during or after an investigation pursuant to this section, the Secretary Attorney General or an employee of the unit designated by the Secretary Attorney General may request search warrants and present and swear or affirm criminal complaints.

(b) If documents necessary to an investigation of the unit shall appear to be located outside the state, such documents shall be made available by the person or entity within the jurisdiction of the state having control over such documents either at a convenient location within the state or, upon payment of reasonable and necessary expenses to the unit for transportation and inspection, at the place outside the state where such documents are maintained.

(c) Upon failure of a person to comply with a subpoena or subpoena duces tecum or failure of a person to give testimony without lawful excuse and upon reasonable notice to all persons affected thereby, the unit may apply to the circuit court of the county in which compliance is sought for appropriate orders to compel obedience with the provisions of this section.

(d) The unit shall not make public the name or identity of a person whose acts or conduct is investigated pursuant to this section or the facts disclosed in such investigation except as the same may be used in any legal action or enforcement proceeding brought pursuant to this article or any other provision of this code.

(e) Beginning on October 1, 2018, the secretary and the Department of Health and Human Resources shall fully cooperate with the Attorney General on any investigation, prosecution or civil action conducted pursuant to this article. The secretary shall promptly provide the Attorney General with any information or document requested for the purposes of carrying out this article, to the extent permitted under federal law.


§9-7-6. Civil remedies.

(a) Any person, firm, corporation, or other entity which willfully, by means of a false statement or representation, or by concealment of any material fact, or by other fraudulent scheme, devise, or artifice on behalf of himself, herself, itself, or others, obtains or attempts to obtain benefits or payments or allowances under the medical programs of the Department of Health and Human Resources to which he or she or it is not entitled, or, in a greater amount than that to which he or she or it is entitled, shall be liable to the Department of Health and Human Resources in an amount equal to three times the amount of such benefits, payments, or allowances to which he or she or it is not entitled, and shall be liable for the payment of reasonable attorney fees and all other fees and costs of litigation.

(b) No criminal action or indictment need be brought against any person, firm, corporation, or other entity as a condition for establishing civil liability hereunder.

(c) A civil action under this section may be prosecuted and maintained on behalf of the Department of Health and Human Resources by the Attorney General, and the Attorney General’s assistants, or by any attorney in contract with or employed with the Attorney General to provide such representation. If the Attorney General declines to do so, the civil action shall be maintained either by a prosecuting attorney and the prosecuting attorney’s assistants or by any attorney in contract with or employed by the Department of Health and Human Resources to provide such representation.


§9-7-6a. Liability of employees of the Department of Health and Human Resources.

There shall be no civil liability on the part of, and no cause of action shall arise against, the Secretary or the Department of Health and Human Resources, the Attorney General, or its employees or agents of the aforementioned for any action taken by them in good faith and in the lawful performance of their powers and duties under this article.



NOTE: The purpose of this bill is to add language to the West Virginia Code providing clarity in the representation of cases relating to Medicaid fraud and abuse and continuing the fraud control unit in the Medicaid Fraud Control Unit of the Attorney General’s office after October 1, 2018.

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

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