ENROLLED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 532
(Senators Palumbo, Foster and Minard, original sponsors)
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[Passed March 12, 2011; in effect ninety days from passage.]
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AN ACT to amend and reenact §9-7-1, §9-7-2, §9-7-3, §9-7-4, §9-7-5,
§9-7-6 and §9-7-8 of the Code of West Virginia, 1931, as
amended; and to amend said code by adding thereto three new
sections, designated §9-7-3a, §9-7-5a and §9-7-6a, all
relating to the Medicaid Fraud Control Unit of the Department
of Health and Human Resources generally; clarifying that the
Medicaid Fraud Control Unit is part of the Department of
Health and Human Resources; providing authority to investigate
financial exploitation; defining terms; authorizing
investigation procedures for the Medicaid Fraud Control Unit
upon information indicating a violation; providing that the
Medicaid Fraud Control Unit may request search warrants and
initiate criminal complaints upon probable cause; allowing
Medicaid Fraud Control Unit lawyers to assist prosecutors in
Medicaid crimes; providing permitted venues for prosecution of crimes committed against Medicaid; and limiting the liability
of the Department of Health and Human Resources, its
secretary, and its employees.
Be it enacted by the Legislature of West Virginia:
That §9-7-1, §9-7-2, §9-7-3, §9-7-4, §9-7-5, §9-7-6 and §9-7-8
of the Code of West Virginia, 1931, as amended, be amended and
reenacted; and that said code be amended by adding thereto three
new sections, designated §9-7-3a, §9-7-5a and §9-7-6a, 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.
(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.
§9-7-2. Definitions.
For the purposes of this article:
(1) "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) "Benefits" means money payments, goods, services, or any
other thing of value.
(3) "Board and Care Facility" means a residential setting
where two or more unrelated adults receive nursing services or
personal care services.
(4) "Claim" means an application for payment for goods or
services provided under the medical programs of the Department of
Health and Human Resources.
(5) "Entity" means any corporation, association, partnership,
limited liability company, or other legal entity.
(6) "Financial Exploitation" means the intentional
misappropriation or misuse of funds or assets of another.
(7) "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.
(8) "Person" means any individual, corporation, association,
partnership, proprietor, agent, assignee or entity.
(9) "Provider" means any individual or entity furnishing goods
or services under the medical programs of the Department of Health
and Human Resources.
(10) "Unit" means the Medicaid Fraud Control Unit established
under section one of this article.
§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, or an employee of the
unit designated by the Secretary, 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, documents 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 section twenty nine, article two, chapter sixty
one, either before, during, or after an investigation pursuant to
this section, the Secretary, or an employee of the unit designated
by the Secretary, 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.
§9-7-3a. Agency lawyers assisting prosecutors.
Attorneys employed and assigned to the Medicaid Fraud Control
Unit created by the provisions of section one of this article may
assist in the prosecution of criminal violations of this article.
§9-7-4. Applications for medical assistance; false statements or
representations; criminal penalties.
(a) A person shall not knowingly make or cause to be made a
false statement or false representation of any material fact in an
application for medical assistance under the medical programs of
the Department of Health and Human Resources.
(b) A person shall not knowingly make or cause to be made a
false statement or false representation of any material fact
necessary to determine the rights of any other person to medical
assistance under the medical programs of the Department of Health
and Human Resources.
(c) A person shall not knowingly and intentionally conceal or
fail to disclose any fact with the intent to obtain medical
assistance under the medical programs of the Department of Health
and Human Resources to which the person or any other person is not
entitled.
(d) Any person found to be in violation of subsection (a), (b)
or (c) of this section is guilty of a felony and, upon conviction,
shall be imprisoned in a state correctional facility not less than
one nor more than ten years, or shall be fined not to exceed
$10,000 or both fined and imprisoned.
§9-7-5. Bribery; false claims; conspiracy; criminal penalties.
(a) A person shall not solicit, offer, pay, or receive any
unlawful remuneration, including any kickback, rebate or bribe,
directly or indirectly, with the intent of causing an expenditure
of moneys from the medical services fund established pursuant to
section two, article four of this chapter, which is not authorized
by applicable laws or rules and regulations.
(b) A person shall not make or present or cause to be made or
presented to the Department of Health and Human Resources a claim
under the medical programs of the Department of Health and Human
Resources knowing the claim to be false, fraudulent or fictitious.
(c) A person shall not enter into an agreement, combination or
conspiracy to obtain or aid another to obtain the payment or
allowance of a false, fraudulent or fictitious claim under the
medical programs of the Department of Health and Human Resources.
(d) Any person found to be in violation of subsection (a), (b)
or (c) of this section is guilty of a felony and, upon conviction,
shall be imprisoned in a state correctional facility not less than
one nor more than ten years or shall be fined not to exceed
$10,000, or both fined and imprisoned.
§9-7-5a. Venue for criminal offenses.
In addition to other venues permitted by state law, a criminal
prosecution under section five of this article may be commenced in
the circuit court of Kanawha County or of any county in which:
(a) The defendant is conducting business; or
(b) Any of the conduct constituting a violation of any
provision of this article has occurred.
§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 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 or its employees or agents for any
action taken by them in good faith and in the lawful performance of
their powers and duties under this article.
§9-7-8. Remedies and penalties not exclusive.
The remedies and penalties provided in this article governing
the operation of the medical programs of the Department of Health
and Human Resources are in addition to those remedies and penalties
provided elsewhere by law.