H. B. 2288
(By Delegate Manchin)
[Introduced January 19, 1999; referred to the
Committee on Finance.]
A BILL to amend and reenact section two, article four, chapter
nine of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; and to amend and reenact section
eleven, article five of said chapter, all relating to
providing for the payment of prescription drug services for
senior citizens.
Be it enacted by the Legislature of West Virginia:
That section two, article four, chapter nine of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; and that section eleven, article five,
of said chapter, be amended and reenacted, all to read as
follows:
ARTICLE 4. STATE ADVISORY BOARD; MEDICAL SERVICES FUND; ADVISORY
COUNCIL; GENERAL RELIEF FUND.
§9-4-2. Medical services fund.
The special fund known as the state of West Virginia public
assistance medical services fund established by chapter one
hundred forty-three, acts of the Legislature, regular session,
one thousand nine hundred fifty-three, as amended by chapter two,
acts of the Legislature, first extraordinary session, one
thousand nine hundred sixty, and chapter forty-nine, acts of
the Legislature, regular session, one thousand nine hundred
sixty-six, shall be continued in accordance with the provisions
of this section so long as the same may be required by federal
laws, rules and regulations applicable to federal-state
assistance and thereafter so long as the commissioner shall deem
such considers the fund to be otherwise necessary or desirable,
and henceforth such the special fund shall be known as the
department of human services medical services fund, hereinafter
referred to as the fund.
The fund shall consist of payments made into the fund out of
state appropriations for medical services to recipients of
specified classes of welfare assistance and such federal grants-
in-aid as are made available for specified classes of welfare
assistance, and, in the case of senior citizens who are unable to
pay the full cost of prescription drug services, prescription
drug services.
Any balance in the fund at the end of any fiscal
year shall remain in the fund and shall not expire or revert.
Payments shall be made out of the fund upon requisition of the commissioner by means of a warrant signed by the auditor and
treasurer.
Recipients of those classes of welfare assistance as are
specified by the department, consistent with applicable federal
laws, rules and regulations, and senior citizens who are unable
to pay the full cost of prescription drug services,
shall be
entitled to have costs of necessary medical services and senior
citizen prescription drug services
paid out of the fund, in the
manner and amounts, to the extent, and for the period determined
from time to time to be feasible by the commissioner pursuant to
rules, regulations and standards established by him. Such The
rules, regulations and standards shall comply with requirements
of applicable federal laws, rules and regulations and shall be
established on the basis of money available for the purpose, the
number of recipients, the experience with respect to the
incidence of illness, disease, accidents, and other causes among
such recipients causing them to require medical services and
prescription drug services for senior citizens and the costs
thereof, the amounts which recipients require otherwise in order
to maintain a subsistence compatible with decency and health, and
any other factor considered relevant and proper by the
commissioner: Provided, That such rules and regulations
respecting qualifications shall permit the expenditure of state
funds to pay for care rendered in any birthing center licensed under the provisions of article two-e, chapter sixteen of this
code, by a licensed nurse midwife or midwife as this occupation
is defined in section one, article fifteen, chapter thirty of
this code, and which care is within the scope of duties for such
a licensed nurse midwife or midwife as permitted by the
provisions of section seven, article fifteen of said chapter
thirty.
ARTICLE 5. MISCELLANEOUS PROVISIONS.
§9-5-11. Assignment of rights; right of subrogation by
department of health and human resources to the rights of
recipients of medical assistance; rules as to effect of
subrogation.
(a) Submission of an application to the department of health
and human resources for medical assistance or assistance for the
payment of prescription drug services for senior citizens not
otherwise financially able to pay for prescription drug services
is, as a matter of law, an assignment of the right of the
applicant or legal representative thereof, to recovery from
personal insurance or other sources, including, but not limited
to, liable third parties, to the extent of the cost of medical
services p
aid for by the medicaid program or paid for
prescription drug services
for senior citizens. This assignment
of rights does not extend to medicare benefits.
At the time the application is made, the department shall include a statement along with such the application that explains
that the applicant has assigned all such rights and the legal
implications of making such the assignment as provided in this
section.
If medical assistance is paid or will be paid to a provider
of medical care on behalf of a recipient of medical assistance
because of any sickness, injury, disease or disability, and
another person is legally liable for such that expense, either
pursuant to contract, negligence or otherwise, the department of
health and human resources shall have a has the right to recover
full reimbursement from any award or settlement for such medical
assistance from such other person, or from the recipient of such
assistance if he has been reimbursed by the other person. The
department shall be legally assigned the rights of the recipient
against the person so liable, but only to the extent of the
reasonable value of the medical assistance or senior citizen
prescription drug services
paid and attributable to the sickness,
injury, disease or disability for which the recipient has
received damages. When an action or claim is brought by a
medical assistance recipient or by someone on his or her behalf
against a third party who may be liable for the injury, disease,
disability or death of a medical assistance recipient or senior
citizen for prescription drug services,
any settlement, judgment
or award obtained is subject to the claim of the department of health and human resources for reimbursement of an amount
sufficient to reimburse the department the full amount of
benefits paid on behalf of the recipient under the medical
assistance program for the injury, disease, disability or death
of the medical assistance recipient. The claim of the department
of health and human resources assigned by such the recipient
shall may not exceed the amount of medical expenses for the
injury, disease, disability or death of the recipient paid by the
department on behalf of the recipient. The right of subrogation
created in this section includes all portions of the cause of
action, by either settlement, compromise, judgment or award,
notwithstanding any settlement allocation or apportionment that
purports to dispose of portions of the cause of action not
subject to the subrogation. Any settlement, compromise, judgment
or award that excludes or limits the cost of medical services or
care or prescription drug services for senior citizens
shall may
not preclude the department of health and human resources from
enforcing its rights under this section. The secretary may
compromise, settle and execute a release of any such claim, in
whole or in part.
(b) Nothing in this section shall This section may not be
construed so as to prevent the recipient of medical assistance
from maintaining an action for injuries received by him or her
against any other person and from including therein, as part of the compensatory damages sought to be recovered, the amount or
amounts of his or her medical expenses, including prescription
drug services for senior citizens
even though such person
received medical assistance in the payment of such medical
expenses or prescription drug services for senior citizens,
in
whole or in part.
If the action be is tried by a jury, the jury shall may not
be informed as to the interest of the department of health and
human resources, if any, and such that fact shall may not be
disclosed to the jury at any time. The trial judge shall, upon
the entry of judgment on the verdict, direct that an amount equal
to the amount of medical assistance, including assistance to
senior citizens for prescription drug services,
given be withheld
and paid over to the department of health and human resources.
Irrespective of whether the case be terminated by judgment or by
settlement without trial, from the amount required to be paid to
the department of health and human resources there shall be
deducted the attorney fees attributable to such amount in
accordance with and in proportion to the fee arrangement made
between the recipient and his or her attorney of record so that
the department shall bear the pro rata portion of such attorney
fees. Nothing in This section shall may not preclude any person
who has received medical assistance or assistance to senior
citizens for prescription drug services
from settling any cause of action which he or she may have against another person and
delivering to the department of health and human resources, from
the proceeds of such settlement, the sums received by him or her
from the department or paid by the department for his or her
medical assistance or prescription drug services for senior
citizens.
If such the other person is aware of or has been
informed of the interest of the department of health and human
resources in the matter, it shall be is the duty of the person to
whose benefit the release inures to withhold so much of the
settlement as may be necessary to reimburse the department to the
extent of its interest in the settlement. No judgment, award of
or settlement in any action or claim by a medical assistance
recipient or senior citizen who is unable to pay the full cost
for prescription drug services
to recover damages for injuries,
disease or disability, in which the department of health and
human resources has interest, shall be satisfied without first
giving the department notice and reasonable opportunity to
establish its interest. The department shall have has sixty days
from receipt of such written notice to advise the recipient or
his or her representative in writing of the department's desire
to establish its interest through the assignment. If no such
written intent is received within the sixty-day period, then the
recipient may proceed and in the event of full recovery forward
to the department the portion of the recovery proceeds less the department's share of attorney's fees and costs expended in the
matter. In the event of less than full recovery the recipient
and the department shall agree as to the amount to be paid to the
department for its claim. If there is no recovery, the
department shall under no circumstances be liable for any costs
or attorneys fees expended in the matter. If, after being
notified in writing of a subrogation claim and possible liability
of the recipient, guardian, attorney or personal representative
for failure to subrogate the department, a recipient, his or her
guardian, attorney or personal representative disposes of the
funds representing the judgment, settlement or award, without the
written approval of the department, that person shall be is
liable to the department for any amount that, as a result of the
disposition of the funds, is not recoverable by the department.
In the event that If a controversy arises concerning the
subrogation claims by the department, an attorney shall
interplead, pursuant to rule twenty-two of the rules of civil
procedure, the portion of the recipient's settlement that will
satisfy the department exclusive of attorneys fees and costs
regardless of any contractual arrangement between the client and
the attorney.
(c) Nothing contained herein shall authorize authorizes the
department of health and human resources to institute a class
action or multiple plaintiff action against any manufacturer, distributor or vendor of any product to recover medical care
expenditures paid for by the medicaid program.
NOTE: This bill provides for the payment of the cost of
prescription drug services for senior citizens who do not have
the financial means to pay for the prescriptions.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.