(By Delegate Manchin)

[Introduced January 9, 2003 ; referred to the

Committee on Health and Human Resources then 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 unable to pay the full cost of prescription drug services.

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 paid 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 is 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.