COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 395

(By Senator Palumbo)

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[Originating in the Committee on Health and Human Resources;

reported January 29, 2014.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §9-5-8b; and to amend said code by adding thereto a new section, designated §61-4-9, all relating generally to the operation and oversight of certain benefit programs; granting certain subpoena power to the Investigations and Fraud Management Division within the Department of Health and Human Resources 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; 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 a new section, designated §9-5-8b; 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.

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.