Senate Bill No. 685
(By Senator Oliverio)
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[Introduced March 23, 2009; referred to the Committee on Health
and Human Resources; and then to the Committee on Banking and
Insurance.]
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A BILL to amend and reenact §9-7-1, §9-7-2, §9-7-3, §9-7-4, §9-7-5,
§9-7-6, §9-7-7 and §9-7-8 of the Code of West Virginia, 1931,
as amended; to amend said code by adding thereto a new
section, designated §9-7-5a; to amend and reenact §33-41-1,
§33-41-2 and §33-41-4 of said code; to amend said code by
adding thereto a new section, designated §33-41-4a; and to
amend and reenact §33-41-7, §33-41-8 and §33-41-8b of said
code, all relating to fraud and associated violations
involving Medicaid, insurance and health care; authorizing the
Medicaid Fraud Control Unit to investigate certain complaints;
defining terms; authorizing the Medicaid Fraud Control Unit to
request search warrants and cooperate with law-enforcement
agencies; authorizing the Medicaid Fraud Control Unit to
receive reports of fraudulent or illegal misconduct;
increasing criminal penalties; creating the felony of
attempting to cause an unauthorized expenditure from the Medical Services Fund; providing for the seizure and
forfeiture of properties belonging to persons convicted of a
crime related to state medical services; excluding providers
convicted of a crime related to state medical services;
setting forth venue rules for criminal and civil state medical
programs fraud actions; authorizing the Insurance Fraud Unit
to investigate health care fraud; defining terms; authorizing
the Insurance Fraud Unit to initiate inquiries and conduct
investigations of certain provisions of the code; and allowing
authorized persons in the Insurance Fraud Unit to submit
complaints to the magistrate regarding violations of certain
provisions of the code.
Be it enacted by the Legislature of West Virginia:
That §9-7-1, §9-7-2, §9-7-3, §9-7-4, §9-7-5, §9-7-6, §9-7-7
and §9-7-8 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; that said code be amended by adding thereto
a new section, designated §9-7-5a; that §33-41-1, §33-41-2 and
§33-41-4 of said code be amended and reenacted; that said code be
amended by adding thereto a new section, designated §33-41-4a; and
that §33-41-7, §33-41-8 and §33-41-8b of said code be amended and
reenacted, all to read as follows:
CHAPTER 9. HUMAN SERVICES.
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 intent of the Legislature to
continue designate the
Medicaid fraud control unit Healthcare Crimes Unit as
the Medicaid Fraud Control Unit of the state and to continue the
Medicaid Fraud Control Unit previously established
within the West
Virginia department of welfare and formerly known as the Medicaid
Fraud Control Unit within the West Virginia Department of Health
and Human Resources. and to provide it with The unit has the
responsibility and authority for investigating and controlling
fraud and abuse of the medical programs
of the state department of
welfare 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 continue to be 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 Healthcare Crimes Unit of
the state department of welfare 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
or financial exploitation of
patients in health care facilities
individuals in facilities, programs or entities which receive
any
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.
(5) To cooperate with the Insurance Fraud Unit established in
section eight, article forty-one, chapter thirty-three of this code
when necessary for the detection, investigation and prosecution of
fraud in the medical programs of the state and to enter into
interagency agreements with the Insurance Fraud Unit.
§9-7-2. Definitions.
For the purposes of this article:
(1) "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) "Benefits" means money payments, goods, services or any
other thing of value.
(3) "Claim" means an application for payment for goods or
services provided under the medical programs of the
department of
welfare Department of Health and Human Resources.
(
4) "Kickback" means any money, fee, commission, credit, gift,
gratuity, thing of value or compensation of any kind which is
provided, directly or indirectly, to any provider, manufacturer,
seller, buyer, distributor or government employee for the purpose
of obtaining or rewarding favorable treatment.
(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 42 U.S.C.
§1396, et seq., as that chapter has been and may hereafter be
amended.
(6) "Person" shall mean any individual, corporation,
association, partnership, agent, assignee or entity.
(5) (7) "Provider" means any individual or entity furnishing
goods or services under the medical programs of the
department of
welfare Department of Health and Human Resources.
(6) (8) "Unit" means the Medicaid fraud control unit
established under section one of this article.
§9-7-3. Investigations; procedure.
(a) When the unit has probable cause to believe that a person
is engaged in or has engaged in an act or activity which is subject
to prosecution under this article
or section twenty-nine, article
two, chapter sixty-one of this code, the unit shall
make conduct an
investigation to determine if the act has been committed
or is being committed and, to the extent necessary for such purpose, the
commissioner, or an employee of the unit designated by the
commissioner, shall have the power to 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 secretary, or an employee of the unit
designated by the secretary, may:
(1) Administer oaths or affirmations;
(2) Request a search warrant before any court or officer
having jurisdiction and to obtain, serve and execute such warrants;
(3) Present, swear and affirm a complaint before any court or
officer having jurisdiction;
(4) 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 the relevant facts or any
matter reasonably calculated to lead to the discovery of admissible
evidence; or
(5) Receive reports of abuse, neglect, financial exploitation,
or any other emergency from Adult Protective Services pursuant to
section eleven, article six, chapter nine of this code.
(b) If documents necessary to an investigation of the unit
shall appear to be located outside the state, such 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 reasonable
and necessary expenses to the unit for transportation and
inspection, at the place outside the state where such 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.
§9-7-4. Applications for medical assistance; false statements or
representations; criminal penalties.
(a) A person shall not:
(1) Knowingly make or cause to be made a false statement or
false representation of any material fact in an application for
medical assistance under the medical programs of the
department of welfare Department of Health and Human Resources.
(b) A person shall not
(2) Knowingly make or cause to be made a false statement or
false representation of any material fact necessary to determine
the rights of any other person to medical assistance under the
medical programs of the
department of welfare Department of Health
and Human Resources.
(c) A person shall not
(3) Knowingly and intentionally conceal or fail to disclose
any fact with the intent to obtain medical assistance under the
medical programs of the
department of welfare Department of Health
and Human Resources to which the person or any other person is not
entitled.
(d) (b) Any person found to be in violation of
subsection (a),
(b) or (c) subdivision (1), (2) or (3), subsection (a) of this
section shall be guilty of a felony, and, upon conviction, shall be
confined in
the penitentiary a state correctional facility not less
than one nor more than ten years, or shall be fined not to exceed
$10,000, or both fined and
imprisoned as provided confined.
§9-7-5. Bribery; false claims; conspiracy; criminal penalties.
(a) A person shall not:
(1) Solicit, offer or receive any
unlawful remuneration,
including any kickback, rebate or bribe, directly or indirectly,
with the intent of causing
or attempting to cause an
unauthorized
expenditure of moneys from the medical services fund established
pursuant to section two, article four of this chapter.
which expenditure is not authorized by applicable laws or rules and
regulations governing said medical services fund.
(b) A person shall not
(2) Make or present or cause to be made or presented to the
department of welfare Department of Health and Human Resources a
claim under the medical programs of the
department of welfare
Department of Health and Human Resources knowing the claim to be
false, fraudulent or fictitious.
(c) A person shall not
(3) Enter into an agreement, combination or conspiracy to
obtain or aid another to obtain the payment or allowance of a
false, fraudulent or fictitious claim under the medical programs of
the
department of welfare Department of Health and Human Resources.
(d) (b) Any person found to be in violation of
subsection (a),
(b) or (c) subdivision (1), (2) or (3), subsection (a) of this
section shall be guilty of a felony, and, upon conviction, shall be
confined in
the penitentiary a state correctional facility for not
less than one nor more than ten years or shall be fined not
to
exceed not less than $10,000
nor more than $100,000, or both fined
and
imprisoned as provided confined.
(c) The court, in imposing sentence under subsection (b) of
this section, shall order:
(1) Forfeiture of property, real or personal, that constitutes
or is derived, directly or indirectly, from gross proceeds
traceable to the commission of the offense to the state; and
(2) Payment of all costs associated with that asset forfeiture.
(d) Any person convicted under the provisions of this section
shall be excluded from participation in the medical program of the
state for life.
§9-7-5a. Venue.
A criminal prosecution under this article may be commenced in
the circuit court of any county in which:
(1) The defendant's principal business operations are located;
(2) Any of the conduct constituting a violation of any
provision of this article shall have occurred;
(3) Any application, claim, representation, statement,
electronic communication or writing was prepared, mailed,
transmitted, received, used, relied upon or acted upon;
(4) Any payment, credit or adjustment was made as a result of
receiving any application, claim, representation, statement,
electronic communication or writing; or
(5) Any warrant, check, fund transfer or allowance was
prepared, mailed, transmitted, received, cashed or acted upon as a
result of the receipt of any application, claim, representation,
statement, electronic communication or writing.
§9-7-6. Civil remedies.
(a) Any person, firm, corporation or other entity which
willfully, by means of a false statement or representation, or by
concealment of any material fact, or by other fraudulent scheme,
devise or artifice on behalf of himself,
herself, itself or others,
obtains or attempts to obtain benefits or payments or allowances under the medical programs of the
department of welfare Department
of Health and Human Resources to which he
or she or it is not
entitled, or, in a greater amount than that to which he or it is
entitled, shall be liable to the
department of welfare Department
of Health and Human Resources in an amount equal to three times the
amount of such benefits, payments or allowances to which he,
she or
it is not entitled, and shall be liable for the payment of
reasonable attorney fees and all other fees and costs of
litigation.
(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 welfare Department of
Health and Human Resources by the Attorney General and his
or her
assistants or a prosecuting attorney and his
or her assistants or
by any attorney in contract with or employed by the
department of
welfare Department of Health and Human Resources to provide such
representation.
§9-7-7. Licensing of vehicles for use by the Healthcare Crimes
Unit.
For purposes of the responsibilities assigned the unit
pursuant to this article, personnel of the unit shall be permitted
to operate vehicles owned or leased for the state displaying Class
A registration plates.
§9-7-8. Remedies and penalties not exclusive.
The remedies and penalties provided in this article governing
the operation of the medical programs of the
department of welfare
Department of Health and Human Resources are in addition to those
remedies and penalties provided elsewhere by law.
CHAPTER 33. INSURANCE.
ARTICLE 41. PRIVILEGES AND IMMUNITY.
§33-41-1. Short title; legislative findings and purpose.
(a) This article may be cited as the "West Virginia Insurance
and Healthcare Fraud Prevention Act."
(b) The Legislature finds that the
business businesses of
insurance
involves and health care involve many transactions of
numerous types that
overlap and have potential for fraud and other
illegal activities. This article is intended to permit use of the
expertise of the commissioner to investigate and help prosecute
insurance fraud and other crimes related to the
business businesses
of insurance
and health care more effectively, and to assist and
receive assistance from state, local and federal law-enforcement
and regulatory agencies in enforcing laws
prohibiting crimes
relating to
the business of insurance such crimes.
§33-41-2. Definitions.
As used in this article:
(1) "Benefits" mean money payments, goods, services or other
thing of value paid in response to a claim filed with an insurer
based upon a policy of insurance;
(2) "Business of insurance"
or "insurance" means the writing
of insurance, including the writing of workers' compensation insurance under the provisions of chapter twenty-three of this
code, self-insurance by an employer or employer group for workers'
compensation risk including the risk of catastrophic injuries under
the provisions of chapter twenty-three of this code or the
reinsuring of risks by an insurer, including acts necessary or
incidental to writing insurance or reinsuring risks and the
activities of persons who act as or are officers, directors, agents
or employees of insurers, or who are other persons authorized to
act on their behalf;
(3)
"Business of health care" or "health care" means the
professional activities of a health care provider;
(3) (4)"Claim" means an application or request for payment or
benefits provided under the terms of a policy of insurance;
(4) (5) "Commissioner" means the Insurance Commissioner of
West Virginia or his or her designee;
(5) (6) "Health care provider" means a person, partnership,
corporation, facility or institution licensed by, or certified in,
this state or another state, to provide health care or professional
health care services, including, but not limited to, a physician,
osteopathic physician, hospital, dentist, registered or licensed
practical nurse, optometrist, pharmacist, podiatrist, chiropractor,
physical therapist or psychologist;
(6) (7) "Insurance" means a contract or arrangement in which
a person undertakes to:
(A) Pay or indemnify another person as to loss from certain
contingencies called "risks", including through reinsurance;
(B) Pay or grant a specified amount or determinable benefit to
another person in connection with ascertainable risk contingencies;
(C) Pay an annuity to another person;
(D) Act as surety; or
(E) Self-insurance for workers' compensation risk including
the risk of catastrophic injuries under the provisions of chapter
twenty-three of this code.
(7) (8) "Insurer" means a person entering into arrangements or
contracts of insurance or reinsurance. Insurer includes, but is
not limited to, any domestic or foreign stock company, mutual
company, mutual protective association, farmers' mutual fire
companies, fraternal benefit society, reciprocal or interinsurance
exchange, nonprofit medical care corporation, nonprofit health care
corporation, nonprofit hospital service association, nonprofit
dental care corporation, health maintenance organization, captive
insurance company, risk retention group or other insurer,
regardless of the type of coverage written, including the writing
of workers' compensation insurance or self insurance under the
provisions of chapter twenty-three of this code, benefits provided
or guarantees made by each. A person is an insurer regardless of
whether the person is acting in violation of laws requiring a
certificate of authority or regardless of whether the person denies
being an insurer;
(8) (9) "Person" means an individual, a corporation, a limited
liability company, a partnership, an association, a joint stock
company, a trust, trustees, an unincorporated organization, or any similar business entity or any combination of the foregoing.
"Person" also includes hospital service corporations, medical
service corporations and dental service corporations as defined in
article twenty-four of this chapter, health care corporations as
defined in article twenty-five of this chapter, or a health
maintenance organization organized pursuant to article
twenty-five-a of this chapter;
(9) (10) "Policy" means an individual or group policy, group
certificate, contract or arrangement of insurance or reinsurance,
coverage by a self-insured employer or employer group for its
workers' compensation risk including its risk of catastrophic
injuries or reinsurance, affecting the rights of a resident of this
state or bearing a reasonable relation to this state, regardless of
whether delivered or issued for delivery in this state;
(10) (11) "Reinsurance" means a contract, binder of coverage
(including placement slip) or arrangement under which an insurer
procures insurance for itself in another insurer as to all or part
of an insurance risk of the originating insurer;
(11) (12) "Statement" means any written or oral representation
made to any person, insurer or authorized agency. A statement
includes, but is not limited to, any oral report or representation;
any insurance application, policy, notice or statement; any proof
of loss, bill of lading, receipt for payment, invoice, account,
estimate of property damages, or other evidence of loss, injury or
expense; any bill for services, diagnosis, prescription, hospital
or doctor record, X ray, test result or other evidence of treatment, services or expense; and any application, report,
actuarial study, rate request or other document submitted or
required to be submitted to any authorized agency. A statement
also includes any written or oral representation recorded by
electronic or other media; and
(12) (13) "Unit" means the insurance fraud unit established
pursuant to the provisions of this article acting collectively or
by its duly authorized representatives.
§33-41-4. Authority of the commissioner; use of special assistant
prosecutors.
(a) The commissioner may investigate suspected criminal acts
relating to
the business of insurance
or health care as authorized
by the provisions of this article.
(b) If the prosecuting attorney of the county in which a
criminal violation relating to
the business of insurance
or health
care occurs determines that his or her office is unable to take
appropriate action, he or she may petition the appropriate circuit
court for the appointment of a special prosecutor or special
assistant prosecutor from the West Virginia prosecuting attorney
Institute pursuant to the provisions of section six, article four,
chapter seven of this code. Notwithstanding the provisions of that
section, attorneys employed by the commissioner and assigned to the
insurance fraud unit created by the provisions of section eight of
this article may prosecute or assist in the prosecution of
violations of the criminal laws of this state related to
the
business of insurance
and health care and may act as special prosecutors or special assistant prosecutors in those cases if
assistance is sought by the prosecuting attorney or special
prosecutor assigned by the institute to prosecute those matters.
(c) Funds allocated for insurance fraud prevention may be
dispersed by the commissioner, at his or her discretion, for the
purpose of insurance
and health care fraud enforcement as
authorized by the provisions of this code.
(d) The Insurance Fraud Unit authorized by the provisions of
section eight of this article may assist federal law-enforcement
agencies, the West Virginia state police, the State Fire Marshal,
the Healthcare Crimes Unit established in article seven, chapter
nine of this code, municipal police departments and the sheriffs of
the counties in West Virginia in investigating crimes related to
the business of insurance
and health care.
(e) The commissioner may conduct public outreach, education,
and awareness programs on the costs of insurance
and health care
fraud to the public.
§33-41-4a. Acceptance of grants, donations and other property by
commissioner.
(a) The commissioner may accept donations, grants, the
proceeds of court-ordered forfeiture proceedings and bequests of
funds or property from individuals, foundations, corporations, the
federal government, governmental agencies and other organizations
or institutions.
(b) Moneys from donations, grants, proceeds of forfeiture
proceedings and bequests received by the commissioner shall be deposited into the special revenue account established in
subsection (b), section thirteen, article three of this chapter,
and the commissioner may make expenditures from such fund in order
to effectuate the purposes of this article.
(c) The director of the unit, acting on behalf of the
commissioner, may enter into and execute any agreements and do and
perform any acts that may be necessary, useful, desirable or
convenient to effectuate the purposes of this section.
§33-41-7. Confidentiality.
(a) Documents, materials or other information in the
possession or control of the office of the Insurance Commissioner
that are provided pursuant to section six of this article or
obtained by the commissioner in an investigation of alleged
fraudulent acts related to the business of insurance
shall be or
health care are confidential by law and privileged,
shall are not
be subject to the provisions of chapter twenty-nine-b of this code,
shall are not
be open to public inspection,
shall are not
be
subject to subpoena, and
shall are not
be subject to discovery or
admissible in evidence in any private civil action. The
commissioner may use the documents, materials or other information
in the furtherance of any regulatory or legal action brought as a
part of the commissioner's official duties. The commissioner may
use the documents, materials or other information if they are
required for evidence in criminal proceedings or other action by
the state or federal government and in such context may be discoverable as ordered by a court of competent jurisdiction
exercising its discretion.
(b) Neither the commissioner nor any person who receives
documents, materials or other information while acting under the
authority of the commissioner may be permitted or required to
testify in any private civil action concerning any confidential
documents, materials or information subject to subsection (a) of
this section except as ordered by a court of competent
jurisdiction.
(c) In order to assist in the performance of the
commissioner's duties, the commissioner:
(1) May share documents, materials or other information,
including the confidential and privileged documents, materials or
information subject to subsection (a) of this section with other
state, federal and international regulatory agencies, with the
national association of Insurance Commissioners and its affiliates
and subsidiaries, and with local, state, federal and international
law-enforcement authorities, provided that the recipient agrees to
maintain the confidentiality and privileged status of the document,
material or other information;
(2) May receive documents, materials or information, including
otherwise confidential and privileged documents, materials or
information, from the national association of Insurance
Commissioners and its affiliates and subsidiaries, and from
regulatory and law-enforcement officers of other foreign or
domestic jurisdictions, and shall maintain as confidential or privileged any document, material or information received with
notice or the understanding that it is confidential or privileged
under the laws of the jurisdiction that is the source of the
document, material or information; and
(3) May enter into agreements governing sharing and use of
information including the furtherance of any regulatory or legal
action brought as part of the recipient's official duties.
(d) No waiver of any applicable privilege or claim of
confidentiality in the documents, materials or information shall
occur as a result of disclosure to the commissioner under this
section or as a result of sharing as authorized in subsection (c)
of this section.
(e) Nothing in this section shall prohibit the commissioner
from providing information to or receiving information from any
local, state, federal or international law-enforcement authorities,
including any prosecuting authority; or from complying with
subpoenas or other lawful process in criminal actions; or as may
otherwise be provided in this article.
(f) Nothing in this article may be construed to abrogate or
limit the attorney-client or work product privileges existing at
common law or established by statute or court rule.
§33-41-8. Creation of insurance fraud unit; purpose; duties;
personnel qualifications.
(a) There is established the West Virginia Insurance Fraud
Unit within the office of the Insurance Commissioner of West
Virginia. The commissioner may employ full-time supervisory, legal and investigative personnel for the unit who shall be qualified by
training and experience in the areas of detection, investigation or
prosecution of fraud within and against the insurance
industry and
health care industries to perform the duties of their positions.
The director of the fraud unit is a full-time position and shall be
appointed by the commissioner and serve at his or her will and
pleasure. The commissioner shall provide office space, equipment,
supplies, clerical and other staff that is necessary for the unit
to carry out its duties and responsibilities under this article.
(b) The fraud unit may in its discretion:
(1) Initiate inquiries and conduct investigations when the
unit has cause to believe violations of any of the following
provisions of this code relating to the business of insurance
or
health care, including violations involving self-insured entities
subject to the provisions of the Employee Retirement Income
Security Act of 1974, 29 U.S.C. §1001, et seq., have been or are
being committed: This chapter; chapter twenty-three of this code;
chapter sixty-a of this code; article three, chapter sixty-one of
this code; and section five, article four of said chapter and
articles three, three-c and four, chapter sixty-one of this code.
Notwithstanding any provision of this code to the contrary, the
fraud unit may, with the agreement of the Director of the Public
Employees Insurance Agency, conduct investigations related to
possible fraud under article sixteen, chapter five of this code;
(2) Review reports or complaints of alleged fraud related to
the business of insurance
or health care activities from federal, state and local law-enforcement and regulatory agencies, persons
engaged in the business of insurance and the general public to
determine whether the reports require further investigation;
and
(3)
Obtain, upon request or through legal process, records
from any person, including providers, insurers and other
governmental agencies, containing information the fraud unit deems
necessary to pursue investigations pursuant to subdivision two of
this subsection: Provided, That no state governmental agency may,
on the ground that the fraud unit is not authorized to investigate
the programs about which the requested records are concerned or
otherwise, deny any such request; and
(3) (4) Conduct independent examinations of alleged fraudulent
activity related to the business of insurance
or health care and
undertake independent studies to determine the extent of
fraudulent
insurance such acts.
(c) The insurance fraud unit may:
(1) Employ and train personnel to achieve the purposes of this
article and to employ legal counsel, investigators, Auditors and
clerical support personnel and other personnel as the commissioner
determines necessary from time to time to accomplish the purposes
of this article;
(2) Inspect, copy or collect records and evidence;
(3) Serve subpoenas issued by grand juries and trial courts in
criminal matters;
(4) Share records and evidence with federal, state or local
law-enforcement or regulatory agencies, and enter into interagency agreements. For purposes of carrying out investigations under this
article, the unit shall be deemed a criminal justice agency under
all federal and state laws and regulations and as such shall have
access to any information that is available to other criminal
justice agencies concerning violations of the insurance laws of
West Virginia or related criminal laws;
(5) Make criminal referrals to the county prosecutors;
(6) Conduct investigations outside this state. If the
information the insurance fraud unit seeks to obtain is located
outside this state, the person from whom the information is sought
may make the information available to the insurance fraud unit to
examine at the place where the information is located. The
insurance fraud unit may designate representatives, including
officials of the state in which the matter is located, to inspect
the information on behalf of the insurance fraud unit, and the
insurance fraud unit may respond to similar requests from officials
of other states;
(7) The insurance fraud unit may initiate investigations and
participate in the development of and, if necessary, the
prosecution of any health care provider, including a provider of
rehabilitation services, suspected of fraudulent activity
related
to the business of insurance;
(8) Specific personnel, designated by the commissioner, shall
be permitted to operate vehicles owned or leased for the state
displaying Class A registration plates;
(9) Notwithstanding any provision of this code to the
contrary, specific personnel designated by the commissioner may
carry firearms in the course of their official duties after meeting
specialized qualifications established by the Governor's Committee
on Crime, Delinquency and Correction, which shall include the
successful completion of handgun training provided to
law-enforcement officers by the West Virginia State Police:
Provided, That nothing in this subsection shall be construed to
include any person designated by the commissioner as a
law-enforcement officer as that term is defined by the provisions
of section one, article twenty-nine, chapter thirty of this code;
and
(10) Any investigator designated by the commissioner shall
have all the lawful powers delegated to members of the State
Police, except the power to make arrests, and shall have the
authority to enforce the provisions of this article and the
criminal provisions of any other article of this code to which this
article applies in any county or municipality of this state; and
(10) (11) The insurance fraud unit shall not be subject to the
provisions of article nine-a, chapter six of this code and the
investigations conducted by the insurance fraud unit and the
materials placed in the files of the unit as a result of any such
investigation are exempt from public disclosure under the
provisions of chapter twenty-nine-b of this code.
(d) The insurance fraud unit shall perform other duties as may
be assigned to it by the commissioner.
§33-41-8b. Fraud investigators may present complaint directly to
magistrate.
Notwithstanding any other provision of this code to the
contrary, any person authorized under this article to initiate and
conduct investigations may submit complaints directly to a
magistrate after review and approval by the prosecuting attorney,
if the complaint is related to the business of insurance
and may be
prosecuted as a criminal violation under this chapter; chapter
twenty-three of this code; article three, chapter sixty-one of this
code; or section five, article four of said chapter or healthcare
and includes a violation of a statute listed in subdivision (1),
subsection (b), section eight of this article.
The complaint shall be in the form of a written statement of
the essential facts constituting the offense charged. The
complaint shall be presented to and sworn before a magistrate in
the county where the offense is alleged to have occurred.
If it appears from the complaint, or from an affidavit or
affidavits filed with the complaint, that there is probable cause
to believe that an offense has been committed and that the
defendant committed it, a warrant for the arrest of the defendant
shall be issued to any officer authorized by law to arrest persons
charged with offenses against the state.
NOTE: The purpose of this bill is to enhance fraud and
associated violations involving Medicaid, insurance and health
care. The bill authorizes the Medicaid Fraud Control Unit to
investigate certain complaints. The bill defines terms, authorizes
the Medicaid Fraud Control Unit to request search warrants and cooperate with law-enforcement agencies. The bill also authorizes
the Medicaid Fraud Control Unit to receive reports of fraudulent or
illegal misconduct. The bill increases criminal penalties and
makes it a felony to attempt to cause an unauthorized expenditure
from the Medical Services Fund and provides for the seizure and
forfeiture of properties belonging to persons convicted of a crime
related to state medical services and prevents those convicted of
a crime related to state medical services from receiving certain
services. The bill sets forth venue rules for criminal and civil
state medical programs fraud actions and further authorizes the
Insurance Fraud Unit to investigate health care fraud.
Additionally, the bill defines terms, authorizes the Insurance
Fraud Unit to initiate inquiries and conduct investigations of
certain provisions of the code and allows authorized persons in the
Insurance Fraud Unit to submit complaints to the magistrate
regarding violations of certain provisions of the code.
§9-7-5a and §33-41-4a are new; therefore, strike-throughs and
underscoring have been omitted.
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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