H. B. 4766


(By Delegates Beane, Ennis, Iaquinta, Perdue,

Yeager, Frich and Walters)

(Originating in the Committee on Government Organization)


[March 11, 2004]



A BILL to amend and reenact §9-7-1 and §9-7-2 of the code of West Virginia, 1931, as amended; to amend and reenact §16-5P-3 and §16-5P-6 of said code; and to amend said code by adding thereto a new article, designated §16-5U-1, §16-5U-2, §16-5U- 3, §16-5U-4, §16-5U-5, §16-5U-6, §16-5U-7 and §16-5U-8, all relating to the oversight of senior centers; providing that the medicaid fraud unit of the department of health and human resources may investigate; requiring the commissioner of the bureau of senior services to report violations to the governor; authorizing secretary of the department of health and human resources to investigate and audit senior centers; establishing that senior centers are subject to governmental ethics act, open governmental meetings act and audit requirements; and establishing criminal penalties.

Be it enacted by the Legislature of West Virginia:
That §9-7-1 and §9-7-2 of the code of West Virginia, 1931, as amended, be amended and reenacted; that §16-5P-3 and §16-5P-6 of said code be amended and reenacted; and that said code be amended by adding thereto a new article, designated §16-5U-1, §16-5U-2, §16-5U-3, §16-5U-4, §16-5U-5, §16-5U-6, §16-5U-7 and §16-5U-8, all to read as follows:
 ARTICLE 7. FRAUD AND ABUSE IN THE MEDICAID PROGRAM.
§9-7-1. Legislative purpose and findings; powers and duties of fraud control unit.

(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. 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 and the program known as handicapped children's services.
(2) The investigation of complaints alleging abuse or neglect of patients in health care facilities which receive payments under the medical programs of the state.
(3) To cooperate Cooperation with the federal government in all programs designed to detect and deter fraud and abuse in the medical programs of the state.
 (4) The investigation of apparent misuse, abuse or diversion of medicaid funds for senior citizens provided through senior centers for unconscionable purposes, including, but not limited to, unconscionably high salaries and compensation packages for administrative officers at senior centers, and cooperation with the bureau of senior services in investigations for the same or similar purposes.
 (4) (5) To employ and train The employment and training of personnel to achieve the purposes of this article and to employ the employment of 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 of this article.
§9-7-2. Definitions.
For the purposes of this article:
 (1) "Administrative officer" means any director, executive director, chief executive officer, chief operating officer, president, vice president, chairman, secretary, treasurer, financial officer, executive officer, or any other person who has administrative responsibilities or authority for a senior center or for part of its operations;
(1)(2) "Assistance" means money payments, medical care, transportation and other goods and services necessary for the health or welfare of individuals, including guidance, counseling and other welfare services and shall include all items of any nature contained within the definition of "welfare assistance" in section two, article one of this chapter.
(2)(3) "Benefits" means money payments, goods, services, or any other thing of value.
(3)(4) "Claim" means an application for payment for goods or services provided under the medical programs of the department of welfare health and human resources.
(4)(5) "Medicaid" means that assistance provided under a state plan implemented pursuant to the provisions of subchapter nineteen, chapter seven, Title 42, United States Code, as that chapter has been and may hereafter be amended.
(5)(6) "Provider" means any individual or entity furnishing goods or services under the medical programs of the department of welfare health and human resources.
(7) "Senior Center" means any senior life services program, any commission on aging, any council on aging, any senior center, any area agency on aging, or any similar governmental, for profit or non-profit entity in operation in the state which receives any state or federal funding, including but not limited to, funding from or through the bureau of senior services or federal funding through the Older American's Act of 1965, as amended. For purposes of this article, "senior center" does not include any hospital or assisted living residence.
(6)(8) "Unit" means the medicaid fraud control unit established under section one of this article.
CHAPTER 16. PUBLIC HEALTH

 ARTICLE 5P. SENIOR SERVICES.
§16-5P-3. Definitions.
(a) "Bureau" means the bureau of senior services.
(b) "Care management" means the planning, arrangement for and coordination of appropriate community-based, in-home services and alternative living arrangements for the frail elderly, disabled or terminally ill.
(c) "Care services" means housekeeping, personal care, chore, escort/transportation, meals, in-home nursing, day care and/or respite services.
(d) "Commissioner" means the commissioner of the bureau of senior services.
(e) "Community care" means a system of community-based, in-home services and alternative living arrangements which provide a full range of preventive, maintenance and restorative services for the frail elderly, disabled or terminally ill.
(f) "Comprehensive assessment" means the assessment of needs, counseling in the development of a case plan, arrangements for services and on-going monitoring of the frail elderly, disabled or terminally ill.
(g) "Continuum of care" means a system of services which has a primary emphasis on in-home care and community service and which includes services such as nursing, medical, transportation and other health and social services available to an individual in an appropriate setting over an extended period of time.
(h) "Council" means the West Virginia council on aging.
(i) "Disabled" for the purposes of this act means a person who has temporary or permanent impairments which require services within the continuum of care.
(j) "Frail elderly" for the purposes of this act means any person sixty years of age or older, with limitations which restrict the person's ability to perform the normal activities of daily living.
(k) "Senior", "Elderly" or "Aging" means any person sixty years of age or older as defined by the term "older individual" in the Older American's Act of 1965 as amended.
 (l) "Senior Center" means any senior life services program, any commission on aging, any council on aging, any senior center, any area agency on aging, or any similar governmental, for profit or non-profit entity in operation in the state which receives any state or federal funding, including but not limited to , funding from or through the bureau of senior services or federal funding through the Older American's Act of 1965, as amended. For purposes of this article, "senior center" does not include any hospital or assisted living residence.
 (l) (m) "Sliding fee scale" means a fee for services provided based on an individual client's ability to pay.
§16-5P-6. Powers and duties generally.
The commissioner shall be the executive and administrative head of the bureau and shall have the power and duty to:
(a) Exercise general supervision of the bureau;
(b) Propose legislative rules for the effective and expeditious performance and discharge of the duties and responsibilities placed upon the commissioner by law;
(c) Conduct and coordinate studies of the problems of the state's older people;
(d) Encourage and promote the establishment of local programs and services for the aging;
(e) Conduct programs of public education on the problems of the aging;
(f) Review state programs for the aging, and annually make recommendations to the governor and the Legislature;
(g) Encourage and assist governmental and private agencies to coordinate effective efforts on behalf of the aging;
(h) Coordinate statewide local and voluntary efforts to serve the aging and develop programs at the local level;
(i) Supervise fiscal management and responsibilities of the bureau;
(j) Keep an accurate and complete record of all bureau proceedings, record and file all bonds and contracts and assume responsibility for the custody and preservation of all papers and documents of the bureau;
(k) Submit an annual report to the governor on the condition, operation and functioning of the bureau;
(l) Invoke any legal or special remedy for the enforcement of orders or the provisions of this chapter;
(m) Standardize administration, expedite bureau business, revise rules and promote the efficiency of the service;
(n) Provide a program of continuing professional, technical and specialized instruction for the personnel of the bureau and local service providers; and
(o) Report to the governor any occurrences of violation of law, rules of policies of the state by any senior center or any occurrences of malfeasance by its board, any board member, or any administrative officer of any senior center; and
(o) (p) Receive on behalf of the state any grant or gift and accept the same, so that the title shall pass to the state. All moneys from grants or gifts shall be deposited with the state treasurer in a special fund and shall be used for the purposes set forth in the grant or gift.
ARTICLE 5U. SENIOR PROGRAMS ACCOUNTABILITY AND OVERSIGHT ACT OF 2004.

§16-5U-1. Short title.
This article may be cited as the "West Virginia Senior Programs Accountability and Oversight Act of 2004".
§16-5U-2. Legislative findings.
The Legislature finds as follows:
(a) West Virginia's senior citizens are a treasure of our society and of the state.
(b) Programs for senior citizens can and must be designed to enrich the quality of life of senior citizens, provide for their well-being and protect them.
(c) The state government should be involved in the administration and oversight of programs for senior citizens.
(d) Substantial federal and state funding is provided for senior citizens.
(e) The vast majority of people who work for senior centers and who serve on boards of senior centers are conscientious people who care deeply about and work diligently for the senior citizens of the state.
(f) There has been a lack of proper oversight of the delivery of programs for senior citizens in the state, and some abuses have occurred.
(g) The abuses found by the Legislature include (1) excessive compensation, exorbitant salaries, and unjustifiable benefit packages for some personnel employed at some senior centers; (2) unreasonable contract provisions and terms of employment for some personnel employed at some senior centers, contract terms which are clearly not in the public interest; (3) nepotism; (4) malfeasance; and (5) lack of appropriate supervision by some governing boards for some senior centers.
(h) The Legislature has not provided to agencies of the executive branch of the state the powers and authority necessary for proper oversight, intervention and control of programs for senior citizens, which has contributed to the problems found by the Legislature.
(i) The goals and objectives of senior services programs are frustrated by the abuses which have been found.
(j) Public confidence in government requires immediate and decisive intervention by the state.
§16-5U-3. Definitions.
As used in this article:
(a) "Administrative officer" means any director, executive director, chief executive officer, chief operating officer, president, vice president, chairman, secretary, treasurer, financial officer, executive officer, or any other person who has administrative responsibilities or authority for a senior center or for part of its operations;
(b) "Board" means a board of directors or other governing board for any senior center;
(c) "Board member" means any person serving as a member of a board of directors or other governing board for any senior center;
(d) "Department" means the department of health and human resources;
(e) "Malfeasance" shall have its common law meaning, and in addition thereto shall include any one of the following:
(1) The payment of exorbitant salaries or bonuses;
(2) An unconscionably long term of employment in an employment contract;
(3) Unconscionably lucrative benefit packages, including but not limited to, an excessive number of paid holidays, an excessive number of vacation days, a contractual provision that awards retroactive sick leave benefits, or a contractual provision that calls for a senior center to provide an administrative officer a vehicle of the employee's choosing; or
(4) The employment by an administrative officer of members of his or her immediate family;
(f) "Secretary" means the secretary of the department of health and human resources;
(g) "Senior", "elderly" or "aging" means any person sixty years of age or older as defined by the term "older individual" in the Older American's Act of 1965, as amended.
(h) "Senior center" means any senior life services program, any commission on aging, any council on aging, any senior center, any area agency on aging, or any similar governmental, for profit or non-profit entity in operation in the state which receives funding from or through the bureau of senior services or federal funding through the Older American's Act of 1965, as amended. For purposes of this article, "senior center" does not include any hospital or nursing home.
§16-5U-4. Oversight authority of the secretary.
In addition to the powers prescribed elsewhere in this code the secretary shall have the following authority and powers:
(1) Conduct comprehensive and detailed investigations and audits of senior centers in this state, examining their contracting, operations, employment practices, purchasing practices and procedures, their utilization of federal and state funds provided, and their effectiveness in delivery of services to the senior citizens of this state. This power and authority specifically includes the power and authority to investigate, audit and examine all contracts of employment and contracts for goods and services entered into by or on behalf of senior centers of this state, and the authority to examine, investigate malfeasance, misfeasance or nonfeasance of senior centers, their boards, board members and administrative officers;
(2) Determine if there is probable cause to believe that the laws, rules or policies of the state have been violated or that malfeasance has occurred by any senior center or by its board, any board member, or any administrative officer of any senior center;
(3) Take action as necessary to protect and control the expenditures of money provided by the state to senior centers and to ensure that services and programs for senior citizens are being delivered to seniors, and that resources are not being diverted therefrom;
(4) Determine and declare that a senior center is not in compliance with the requirements of law or that its board, or members of its board, or any of its administrative officers is committing malfeasance;
(5) Make a request of any department or agency of state or local government for such services, information and assistance as necessary to carry out the provisions of this article;
(6) Request in writing of the speaker of the House of Delegates and the president of the Senate the assistance of the office of the legislative auditor, provided by article two, chapter four of this code;
(7) Determine whether to seek the assistance of law enforcement or prosecutorial authorities with regard to the investigations or findings;
(8) Provide written reports to the members of the Legislature and the joint committee on government and finance of the Legislature, of the secretary's findings, together with any recommended legislation to enhance proper oversight and accountability in senior centers and in the delivery of services and programs to senior citizens of this state.
 §16-5U-5. Applicability of governmental ethics act.
Board members and administrative officers of senior centers are subject to the provisions of the West Virginia Governmental Ethics Act, article one, chapter six-b of this code.
§16-5U-6. Applicability of open governmental proceedings act.

Boards for senior centers are subject to the provisions of the West Virginia Open Governmental Proceedings Act, article nine-a, chapter six of this code.
§16-5U-7. Applicability of audit requirements.
Boards for senior centers are subject to the audit requirements of section fourteen, article four, chapter twelve of this code.
16-5U-8. Criminal offenses.
(a) It is unlawful for any member of the board of a senior center or any administrative officer of a senior center to be or become pecuniarily interested, directly or indirectly, in the proceeds of any contract or service or in the furnishing of any supplies in the contract for or the awarding or letting of a contract if, as a member of the board or as an administrative officer, he or she may have any voice, influence or control.
(b) Any person who violates the provisions of subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars and may, in the discretion of the court, be confined in the county or regional jail for a period not to exceed six months.