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.