H. B. 2142
(By Delegate Manchin)
[Introduced February 14, 2001
; referred to the
Committee on Finance.]
A BILL to amend and reenact section two, article four, chapter nine
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; and to amend and reenact section
eleven, article five of said chapter, all relating to
providing for the payment of prescription drug services for
senior citizens.
Be it enacted by the Legislature of West Virginia:
That section two, article four, chapter nine of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; and that section eleven, article five, of
said chapter, be amended and reenacted, all to read as follows:
ARTICLE 4. STATE ADVISORY BOARD; MEDICAL SERVICES FUND; ADVISORY
COUNCIL; GENERAL RELIEF FUND.
§9-4-2. Medical services fund.
The special fund known as the state of West Virginia public
assistance medical services fund established by chapter one hundred
forty-three, acts of the Legislature, regular session, one thousand
nine hundred fifty-three, as amended by chapter two, acts of the
Legislature, first extraordinary session, one thousand nine hundred
sixty, and chapter forty-nine, acts of the Legislature, regular
session, one thousand nine hundred sixty-six, shall be continued in
accordance with the provisions of this section so long as the same
may be required by federal laws, rules and regulations applicable
to federal-state assistance and thereafter so long as the
commissioner
shall deem such considers the fund to be otherwise
necessary or desirable, and henceforth
such the special fund shall
be known as the department of human services medical services fund,
hereinafter referred to as the fund.
The fund shall consist of payments made into the fund out of
state appropriations for medical services to recipients of
specified classes of welfare assistance and
such federal
grants-in-aid as are made available for specified classes of
welfare assistance,
and, in the case of senior citizens who are
unable to pay the full cost of prescription drug services, prescription drug services. Any balance in the fund at the end of
any fiscal year shall remain in the fund and shall not expire or
revert. Payments shall be made out of the fund upon requisition of
the commissioner by means of a warrant signed by the auditor and
treasurer.
Recipients of those classes of welfare assistance as are
specified by the department, consistent with applicable federal
laws, rules and regulations,
and senior citizens who are unable to
pay the full cost of prescription drug services, shall be entitled
to have costs of necessary medical services
and senior citizen
prescription drug services paid out of the fund, in the manner and
amounts, to the extent, and for the period determined from time to
time to be feasible by the commissioner pursuant to rules,
regulations and standards established by him.
Such The rules,
regulations and standards shall comply with requirements of
applicable federal laws, rules and regulations and shall be
established on the basis of money available for the purpose, the
number of recipients, the experience with respect to the incidence
of illness, disease, accidents, and other causes among such
recipients causing them to require medical services
and
prescription drug services for senior citizens and the costs thereof, the amounts which recipients require otherwise in order to
maintain a subsistence compatible with decency and health, and any
other factor considered relevant and proper by the commissioner:
Provided, That such rules
and regulations respecting qualifications
shall permit the expenditure of state funds to pay for care
rendered in any birthing center licensed under the provisions of
article two-e, chapter sixteen of this code, by a licensed nurse
midwife or midwife as this occupation is defined in section one,
article fifteen, chapter thirty of this code, and which care is
within the scope of duties for
such a licensed nurse midwife or
midwife as permitted by the provisions of section seven, article
fifteen of said chapter thirty.
ARTICLE 5. MISCELLANEOUS PROVISIONS.
§9-5-11. Assignment of rights; right of subrogation by department
of health and human resources to the rights of
recipients of medical assistance; rules as to effect of
subrogation.
(a) Submission of an application to the department of health
and human resources for medical assistance
or assistance for the
payment of prescription drug services for senior citizens not
otherwise financially able to pay for prescription drug services
is, as a matter of law, an assignment of the right of the applicant or legal representative thereof, to recovery from personal
insurance or other sources, including, but not limited to, liable
third parties, to the extent of the cost of medical services paid
for by the medicaid program
or paid for prescription drug services
for senior citizens. This assignment of rights does not extend to
medicare benefits.
At the time the application is made, the department shall
include a statement along with
such the application that explains
that the applicant has assigned all such rights and the legal
implications of making
such the assignment as provided in this
section.
If medical assistance is paid or will be paid to a provider of
medical care on behalf of a recipient of medical assistance because
of any sickness, injury, disease or disability, and another person
is legally liable for
such that expense, either pursuant to
contract, negligence or otherwise, the department of health and
human resources
shall have a has the right to recover full
reimbursement from any award or settlement for such medical
assistance from such other person, or from the recipient of such
assistance if he has been reimbursed by the other person. The
department shall be legally assigned the rights of the recipient against the person so liable, but only to the extent of the
reasonable value of the medical assistance
or senior citizen
prescription drug services paid and attributable to the sickness,
injury, disease or disability for which the recipient has received
damages. When an action or claim is brought by a medical
assistance recipient or by someone on his or her behalf against a
third party who may be liable for the injury, disease, disability
or death of a medical assistance recipient
or senior citizen for
prescription drug services, any settlement, judgment or award
obtained is subject to the claim of the department of health and
human resources for reimbursement of an amount sufficient to
reimburse the department the full amount of benefits paid on behalf
of the recipient under the medical assistance program for the
injury, disease, disability or death of the medical assistance
recipient. The claim of the department of health and human
resources assigned by
such the recipient
shall may not exceed the
amount of medical expenses for the injury, disease, disability or
death of the recipient paid by the department on behalf of the
recipient. The right of subrogation created in this section
includes all portions of the cause of action, by either settlement,
compromise, judgment or award, notwithstanding any settlement allocation or apportionment that purports to dispose of portions of
the cause of action not subject to the subrogation. Any
settlement, compromise, judgment or award that excludes or limits
the cost of medical services or care
or prescription drug services
for senior citizens shall may not preclude the department of health
and human resources from enforcing its rights under this section.
The secretary may compromise, settle and execute a release of any
such claim, in whole or in part.
(b)
Nothing in this section shall This section may not be
construed so as to prevent the recipient of medical assistance from
maintaining an action for injuries received by him
or her against
any other person and from including therein, as part of the
compensatory damages sought to be recovered, the amount or amounts
of his or her medical expenses,
including prescription drug
services for senior citizens even though such person received
medical assistance in the payment of such medical expenses
or
prescription drug services for senior citizens, in whole or in
part.
If the action
be is tried by a jury, the jury
shall may not be
informed as to the interest of the department of health and human
resources, if any, and
such that fact
shall may not be disclosed to the jury at any time. The trial judge shall, upon the entry of
judgment on the verdict, direct that an amount equal to the amount
of medical assistance,
including assistance to senior citizens for
prescription drug services, given be withheld and paid over to the
department of health and human resources. Irrespective of whether
the case be terminated by judgment or by settlement without trial,
from the amount required to be paid to the department of health and
human resources there shall be deducted the attorney fees
attributable to such amount in accordance with and in proportion to
the fee arrangement made between the recipient and his or her
attorney of record so that the department shall bear the pro rata
portion of such attorney fees.
Nothing in This section
shall may
not preclude any person who has received medical assistance
or
assistance to senior citizens for prescription drug services from
settling any cause of action which he
or she may have against
another person and delivering to the department of health and human
resources, from the proceeds of such settlement, the sums received
by him or her from the department or paid by the department for his
or her medical assistance
or prescription drug services for senior
citizens. If
such the other person is aware of or has been
informed of the interest of the department of health and human resources in the matter, it
shall be is the duty of the person to
whose benefit the release inures to withhold so much of the
settlement as may be necessary to reimburse the department to the
extent of its interest in the settlement. No judgment, award of or
settlement in any action or claim by a medical assistance recipient
or
senior citizen who is unable to pay the full cost for
prescription drug services to recover damages for injuries, disease
or disability, in which the department of health and human
resources has interest, shall be satisfied without first giving the
department notice and reasonable opportunity to establish its
interest. The department
shall have has sixty days from receipt of
such written notice to advise the recipient or his or her
representative in writing of the department's desire to establish
its interest through the assignment. If no
such written intent is
received within the sixty-day period, then the recipient may
proceed and in the event of full recovery forward to the department
the portion of the recovery proceeds less the department's share of
attorney's fees and costs expended in the matter. In the event of
less than full recovery the recipient and the department shall
agree as to the amount to be paid to the department for its claim.
If there is no recovery, the department shall under no circumstances be liable for any costs or attorneys fees expended in
the matter. If, after being notified in writing of a subrogation
claim and possible liability of the recipient, guardian, attorney
or personal representative for failure to subrogate the department,
a recipient, his or her guardian, attorney or personal
representative disposes of the funds representing the judgment,
settlement or award, without the written approval of the
department, that person
shall be is liable to the department for
any amount that, as a result of the disposition of the funds, is
not recoverable by the department.
In the event that If a
controversy arises concerning the subrogation claims by the
department, an attorney shall interplead, pursuant to rule
twenty-two of the rules of civil procedure, the portion of the
recipient's settlement that will satisfy the department exclusive
of attorneys fees and costs regardless of any contractual
arrangement between the client and the attorney.
(c) Nothing contained herein
shall authorize authorizes the
department of health and human resources to institute a class
action or multiple plaintiff action against any manufacturer,
distributor or vendor of any product to recover medical care
expenditures paid for by the medicaid program.
NOTE: This bill provides for the payment of the cost of
prescription drug services for senior citizens who do not have the
financial means to pay for the prescriptions.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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