WEST virginia legislature
2019 regular session
Senate Bill 318
Senators Trump, Rucker, Cline, Roberts, Sypolt, Tarr, Hamilton, and Azinger, original sponsors
[Originating in the Committee on the Judiciary; Reported on February 23, 2019]
A BILL to amend and reenact §9-7-1, §9-7-3, §9-7-6, and §9-7-6a of the Code of West Virginia, 1931, as amended, all relating to transferring the Medicaid Fraud Control Unit to the Office of the Attorney General; establishing an effective date the Medicaid Fraud Control Unit will transfer to the Office of the Attorney General; establishing the Legislative Auditor to deliver a report on the performance of the Medicaid Fraud Control Unit; establishing investigation powers with the Attorney General; establishing the Secretary of the Department of Health and Human Resources may share documents with the Attorney General; establishing persons able to maintain a civil action; and establishing liability limits for employees acting in good faith.
Be it enacted by the Legislature of West Virginia:
article 7. fraud and abuse in the medicaid program.
§9-7-1. Legislative purpose and findings; powers and duties of fraud control unit; transfer to the Office of the Attorney General; legislative report.
(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 §9-4-2 of this code: Provided, That effective October 1, 2019, the Medicaid Fraud Control Unit shall be transferred to the Office of the Attorney General pursuant to subsection (c) of this section. 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
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.
(c) Effective October 1, 2019, the Medicaid Fraud Control Unit shall be transferred to the Office of the Attorney General. All rights, responsibilities, powers, and duties of the unit shall be transferred to the Office of the Attorney General, including the administration and authority of the Medicaid Fraud Control Fund. All employees of the Medicaid Fraud Control Unit shall be transferred to and become employees of the Office of the Attorney General at their existing hourly rate or salary and with all accrued benefits. The Medicaid Fraud Control Unit’s authorities, powers, and duties shall remain unchanged by this subsection.
(d) On or before December 31, 2022, the Legislative Auditor shall study and report to the Joint Committee on Government and Finance on the performance of the Medicaid Fraud Control Unit within the Office of the Attorney General during the previous three years compared to the performance of the unit while it was established within the Department of Health and Human Resources.
§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 Attorney General, or an employee of
the unit designated by the Secretary Attorney General, 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 §61-2-29 of this code, either before, during, or after
an investigation pursuant to this section, the
General, or an employee of the unit designated by the Secretary Attorney
General, may request search warrants and present and swear or affirm
(b) If documents necessary
to an investigation of the unit shall 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 the 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 the 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.
(e) Beginning on October 1, 2019, the secretary and the Department of Health and Human Resources shall fully cooperate with the Office of the Attorney General on any investigation, prosecution, or civil action conducted pursuant to this article. The secretary shall promptly provide the Attorney General with any information or document requested for the purposes of carrying out this article, to the extent permitted under federal law.
(f) Prior to October 1, 2019, the secretary and the Department of Health and Human Resources shall fully cooperate with and assist the Office of the Attorney General in any efforts to seek, acquire, continue, and maintain any ongoing work within the Medicaid Fraud Control Unit.
§9-7-6. Civil remedies; statute of limitations.
(a) Any person, firm,
corporation, or other entity which makes or attempts to make, or causes to be
made, a claim for benefits, payments, or allowances under the medical programs
of the Department of Health and Human Resources, when
such the person,
firm, corporation, or entity knows, or reasonably should have known, such claim
to be false, fictitious, or fraudulent, or fails to maintain such records as
are necessary 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
(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 by any attorney in contract with or employed with
the Office of the Attorney General to provide such representation. If the
Attorney General declines to do so, the civil action shall be maintained either
by 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.
(d) Any civil action brought under this section shall be brought within five years from the time the false, fraudulent, or fictitious claim was made. Claims will be judged based on the Medicaid or program rules in existence at the time of the claim submission.
§9-7-6a. Liability of employees of the Department of Health and Human Resources; Office of the Attorney General.
There shall be no civil
liability on the part of, and no cause of action shall arise against the
or the Department of Health and Human Resources, the Office of the
Attorney General, or its employees or agents of the
aforementioned for any action taken by them in good faith and in the lawful
performance of their powers and duties under this article.