H. B. 2140
(By Delegates Hatfield, Fleischauer,
Perdue, Mahan, Coleman and Faircloth)
[Introduced January 13, 2003; referred to the
Committee on Health and Human Resources then the
A BILL to amend chapter nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article ten, relating to
prohibiting certain nursing homes from using state funds for
activities unrelated to the provision of health care services;
and authorizing civil actions for enforcement; and authorizing
Be it enacted by the Legislature of West Virginia:
That chapter nine of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended by adding thereto
a new article, designated article ten, to read as follows:
ARTICLE 10. HEALTH CARE ONLY ACT.
§9-10-1. Use of state funds by certain nursing homes for certain
activities unrelated to health care prohibited.
(a) No nursing home which provides health care and related services which are reimbursed by any West Virginia state agency or
department in a total amount in excess of one hundred thousand
dollars in a calendar year, referred to in the remainder of this
article as a "provider," may use state funds for any activity
unrelated to health care services, including political
contributions, lobbying activities, travel and entertainment or
efforts to assist, promote, deter or discourage union organization,
referred to in the remainder of this article as "unrelated
(b) It is a violation of subsection (a) of this section if a
provider conducts unrelated activities during a work day or shift
in which participating employees provide services to medicaid
beneficiaries or patients whose care is otherwise financed by state
§9-10-2. Maintenance of records; certification.
(a) Any provider that makes expenditures to engage in
unrelated activities shall maintain records sufficient to show that
no state funds were used for those expenditures. The provider
shall submit the records to the secretary of the department of
health and human resources upon request.
(b) All providers subject to this article shall submit a
certification to the secretary that no state funds will be used for
§9-10-3. Complaints and civil actions.
(a) Any person may file a complaint with the secretary of the
department of health and human resources if he or she believes that
a provider is expending funds in violation of this article. Upon
the filing of the complaint, the secretary shall, within five
business days, notify the provider that it must produce, within ten
business days, records sufficient to show that no state funds were
used for unrelated activities.
(b) A civil action for a violation of this article may be
brought by the attorney general or by any taxpayer on behalf of the
people of the state of West Virginia for injunctive relief,
damages, civil penalties and other appropriate equitable relief.
All damages and civil penalties collected pursuant to this chapter
shall be paid to the state treasury, general fund.
(c) Before filing an action under this section, a taxpayer
shall give a thirty-day written notice to the secretary of the
alleged violation and the intent to bring suit. The notice may not
be given until twenty days after a complaint is filed with the
secretary. If the secretary commences a civil action for the same
alleged violation within thirty days of receiving the notice, a
separate action by the taxpayer is barred.
(d) A taxpayer may intervene as a plaintiff in any action
brought under this section.
(e) A prevailing plaintiff in any action under this section is
entitled to recover reasonable attorney's fees and costs. A prevailing taxpayer intervenor who makes a substantial contribution
to an action under this section is entitled to recover reasonable
attorney's fees and costs.
(a) A provider is liable to the state for the amount of any
funds expended in violation of this article plus a civil penalty
equal to twice the amount of those funds. For purposes of
accounting for expenditures, if state funds and other funds are
commingled, any expenditures on unrelated activities shall be
allocated between state funds and other funds on a pro rata basis.
(b) Any individual who knowingly authorizes the use of state
funds in violation of this article is liable to the state for the
amount of those funds.
§9-10-5. Included activities.
For purposes of this article, any expense, including legal and
consulting fees and salaries of supervisors and employees, incurred
for research for, or preparation, planning or coordination of, or
carrying out, unrelated activities shall be treated as paid or
incurred for that activity.
§9-10-6. Expenses not subject to the prohibition.
(a) The provisions of this article do not apply to an activity
performed, or to an expense incurred, in connection with any of the
(1) Addressing a grievance or negotiating or administering a collective bargaining agreement; or
(2) Performing an activity required by federal or state law or
by a collective bargaining agreement.
(b) The provisions of this article do not apply to an
expenditure made prior to the effective date of this article.
(c) Nothing in this article requires employers to maintain
records in any particular form.
§9-10-7. Discriminatory acts prohibited.
(a) No provider subject to the provisions of this article may
discharge, demote, threaten or otherwise discriminate against any
person or employee with respect to compensation, terms, conditions,
or privileges of employment because the person or employer, or any
person acting pursuant to the request of the employee, provided or
attempted to provide information to the secretary or his or her
designee regarding possible violations of this article.
(b) Any person or employee or former employee subject to the
provisions of this article who believes that he or she has been
discharged or discriminated against in violation of this section
may file a civil action within three years of the date of the
discharge or discrimination.
(c) If a court of competent jurisdiction finds by a
preponderance of the evidence that a violation of this section has
occurred, the court may grant relief as it considers appropriate,
(1) Reinstatement to the employee's former position;
(2) Compensatory damages, costs and reasonable attorneys fees;
(3) Other relief to remedy past discrimination.
(d) The protections of this section do not apply to any
employee or person who:
(1) Deliberately causes or participates in the alleged
violation of law or rule; or
(2) Knowingly or recklessly provides substantially false
information to the department.
NOTE: The purpose of this bill is to
prohibit certain nursing
homes from using state funds for activities unrelated to the
provision of health care services. It also requires reporting and
establishes civil actions and penalties.
This article is new; therefore, strike-throughs and
underscoring have been omitted.