H. B. 4297

         (By Delegates Perdue and Ellem)

         [Introduced January 24, 2014; referred to the

Committee on Health and Human Resources then the Judiciary.]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §9-5-8b and §9-5-22; to amend and reenact §9-9-6 of said code; and to amend said code by adding thereto a new section, designated §61-4-9, all relating to the operation and oversight of certain benefit programs; granting certain subpoena power to the Investigations and Fraud Management Division to investigate welfare fraud; authorizing the Investigations and Fraud Management Division to request search warrants, swear to complaints and seek relevant orders from circuit court in certain situations; providing access to out-of-state documents in certain circumstances; prohibiting disclosure of persons under investigation by the Investigations and Fraud Management Division; opting out of a federal statute that would otherwise not allow a state resident who has been convicted of a felony involving a controlled substance from receiving certain benefits; requiring the Department of Health and Human Resources to seek a waiver of federal law to implement a prohibition on the purchase of certain items with certain benefits; requiring the Department of Health and Human Resources to seek a waiver of federal regulations to implement an incentive program for the purchase of certain fresh fruits, vegetables and meats; defining terms; creating misdemeanor and felony offenses for certain unlawful use of certain benefits or benefit access devices; stating certain presumptions and calculations permissible in prosecution of these offenses; and providing an alternative to confinement for individuals convicted of the offenses associated with unlawful use of certain benefits.

Be it enacted by the Legislature of West Virginia:

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §9-5-8b and §9-5-22; that §9-9-6 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §61-4-9, all to read as follows:

CHAPTER 9. HUMAN SERVICES.

ARTICLE 5. MISCELLANEOUS PROVISIONS.

§9-5-8b. Authority of Investigations and Fraud Management Division to subpoena witnesses and documents.

    (a) When the Investigations and Fraud Management Division of the Office of the Inspector General, which is charged with investigating welfare fraud and employee misconduct, has credible information that indicates a person has engaged in an act or activity related to Department of Health and Human Resources programs, benefits or employee misconduct which is subject to prosecution, it may conduct an investigation to determine if the act has been committed. To the extent necessary to the investigation, the secretary or an employee of the Office of the Inspector General 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 Investigations and Fraud Management Division has probable cause to believe that a person has engaged in an act or activity which is subject to prosecution relating to Department of Health and Human Resources programs, benefits or employee misconduct, the secretary or an employee of the Office of the Inspector General 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 Investigations and Fraud Management Division appear to be located outside the state, the 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 necessary expenses to the division for transportation and inspection, at the place outside the state where these documents are maintained.

    (c) Upon failure of a person to comply with a subpoena or a subpoena for the production of evidence or failure of a person to give testimony without lawful excuse and upon reasonable notice to all persons affected thereby, the Investigations and Fraud Management Division 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 Investigations and Fraud Management Division may 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 an investigation except as the same may be used in any legal action or enforcement proceeding brought pursuant to this code or federal law.

§9-5-22. Supplemental Nutritional Assistance Program.

    (a) On or before October 1, 2014, the Department of Health and Human Resources shall submit a demonstration waiver request to the United States Department of Agriculture Food and Nutrition Service, pursuant to section 17 of the Food and Nutrition Act of 2008 (7 U.S.C. Section 2026), seeking to prohibit the use of Supplemental Nutrition Assistance Program benefits for the purchase of specific items that have no nutritional value, including soda.

    (b) On or before October 1, 2014, the Department of Health and Human Resources shall submit a request to the United States Department of Agriculture Food and Nutrition Service seeking a waiver of the federal regulations contained in 7 C.F.R. §278.2(b), in order to provide incentives for the use of Supplemental Nutrition Assistance Program benefits for the purchase of fresh fruits, vegetables and meat from farmer’s markets or grocery stores. In creating the request and proposing the incentives, the Department of Health and Human Resources shall review the results of the United States Department of Agriculture Food and Nutrition Service’s Healthy Incentives Pilot, completed on December 31, 2012.

    (c) Pursuant to the authorization provided to the states under section 115(d)(1)(A) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (21 U.S.C. Section 862a(d)(1)(A)), West Virginia elects to exempt all persons domiciled in the state from application of section 115(a) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (21 U.S.C. Section 862a(a)).

ARTICLE 9. WV WORKS ACT.

§9-9-6. Program participation.

    (a) Unless otherwise noted in this article, all adult beneficiaries of cash assistance and work eligible individuals shall participate in the West Virginia Works Program in accordance with the provisions of this article. The level of participation, services to be delivered and work requirements shall be is defined through legislative rules established by the secretary.

    (b) Any individual exempt under the provisions of section eight of this article may participate in the activities and programs offered through the West Virginia Works Program.

    (c) Support services other than cash assistance through the West Virginia Works Program may be provided to at-risk families to assist in meeting the work requirements or to eliminate the need for cash assistance.

    (d) Cash assistance through the West Virginia Works Program may be provided to an at-risk family if the combined family income, as defined in section three of this article, is below the income test levels established by the department, subject to the following:

    (1) Any adult member of an at-risk family who receives supplemental security income shall be is excluded from the benefit group;

    (2) Within the limits of funds appropriated therefor, an at-risk family that includes a married man and woman and dependent children of either one or both may receive an additional cash assistance benefit in an amount of $100 or less; and

    (3) An at-risk family shall receive an additional cash assistance benefit in the amount of $25 regardless of the amount of child support collected in a month on behalf of a child or children of the at-risk family, as allowed by federal law.

    (e) Pursuant to the authorization provided to the states under section 115(d)(1)(A) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Public Law 104-193, 21 U.S.C. Section 862a(d)(1)(A)), West Virginia elects to exempt all persons domiciled in the state from application of section 115(a) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (21 U.S.C. Section 862a(a)).

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 4. FORGERY AND CRIMES AGAINST THE CURRENCY.

§61-4-9. Unauthorized use, transfer, acquisition, alteration or possession of certain benefits.

    (a) For the purposes of this section:

    (1) “Benefits” means any payment, allotments, money, goods or other things of value granted pursuant to a benefit program;

    (2) “Benefit access device” means any card, plate, account number or other means of access that can be used, alone or in conjunction with another access device, to obtain payments, allotments, benefits, money, goods or other things of value, that can be used to initiate a transfer of funds;

    (3) “Benefit program” includes the Federal Food Stamp Act, Supplemental Nutritional Assistance Program, Temporary Assistance to Needy Families, or other similar state or federal financial assistance program; and

    (4) “Terms of the benefit program” includes all statutes, rules, regulations or other requirements of that specific benefit program for use of the benefits.

    (b) Any person who knowingly uses, transfers, acquires, alters, or possesses benefits or one or more benefit access device contrary to the terms of the benefit program shall:

    (1) If the benefits are of a value of less than $100, be guilty of a misdemeanor and, upon conviction thereof, shall for a first offense be fined not more than $1,000 or confined in a regional jail for not more than one year, or both fined and confined, and for a second and any subsequent offense shall be fined not more than $1,000 or confined in a regional jail for not less than thirty days and not more than one year;

    (2) If the benefits are of a value of $100 or more, but less than $5,000, be guilty of a felony and, upon conviction, shall for a first offense be fined not more than $10,000 or imprisoned in a state correctional facility for not more than three years, or both fined and imprisoned, and for a second and any subsequent offense shall be fined not more than $10,000 or imprisoned for not less than six months nor more than five years, or both fined and imprisoned; and

    (3) If the benefits are of a value of $5,000 or more, be guilty of a felony and, upon conviction, fined not more than $250,000 or imprisoned in a state correctional facility for not more than ten years, or both fined and imprisoned.

    (c) Any person who presents, or causes to be presented, benefits or one or more benefit access device for payment, allotments, money, goods or other things of value knowing the same to have been received, transferred or used in any manner in violation of the terms of the benefit program is:

    (1) If the benefits are of a value of less than $100, guilty of a misdemeanor and, upon conviction, shall for a first offense be fined not more than $1,000 or confined in a regional jail for not more than one year, or both fined and confined, and for a second and any subsequent conviction shall be fined not more than $1,000 or confined in a regional jail for not less than thirty days and not more than one year;

    (2) If the benefits are of a value of $100 or more, guilty of a felony and, upon conviction, shall for a first offense be fined not more than $20,000 or imprisoned in a state correctional facility for not more than five years, or both fined and imprisoned, and for a second and any subsequent conviction shall be fined not more than $20,000 or imprisoned in a state correctional facility for not less than one year nor more than five years, or both fined and imprisoned.

    (d) Notwithstanding the penalties contained in this section, in the case of any individual convicted of an offense under this section, the court may permit the individual to perform work approved by the court, in lieu of confinement, for the purpose of providing restitution for losses incurred by the United States and the state agency as a result of the offense for which the individual was convicted. If the court permits the individual to perform work and the individual agrees, the court shall withhold the imposition of the sentence on the condition that the individual perform the assigned work. Upon the successful completion of the assigned work the court shall waive any confinement from the sentence.

    (e) For purposes of this section, possession of two or more benefit access devices without authorization is prima facie evidence that an individual has knowledge the possession of the benefit access devices is a violation of the terms of the benefit program.

    (f) In determining the value in this section, it is permissible to cumulate amounts or values of benefits.

    NOTE: The purpose of this bill is to make benefits programs run more effectively by removing barriers to participation, increasing the power of the Investigations and Fraud Management Division to investigate welfare fraud, require DHHR to request the ability to prohibit the use of benefits for certain unhealthy foods and incentivize the use of benefits for certain healthy foods, and create state criminal penalties for knowingly misusing benefits in order to permit state prosecution for certain violators rather than relying solely on federal prosecution.

    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

    §9-5-8b, §9-5-22 and §61-4-9 are new; therefore, they have been completely underscored.