WEST virginia legislature
2019 regular session
House Bill 2867
By Delegate Householder, Higginbotham, Mandt, Foster, Linville, Graves, Steele, Pack, Espinosa and Wilson
[Introduced February 6, 2019;
to the Committee on Health and Human Resources then the Judiciary.]
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 Attorney General’s office; establishing an effective date the Medicaid Fraud Control Unit will transfer to the Attorney General’s office; 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 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 previously established within the Department of Health and Human Resources 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 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 comparted 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, 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.
(e) Beginning on October 1, 2019, the secretary and the Department of Health and Human Resources shall fully cooperate with 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.
§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 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 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
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 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; 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 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.
NOTE: The purpose of this bill is to transfer the Medicaid Fraud Control Unit to the Attorney General’s office and continue the Medicaid Fraud Control Unit in the Attorney General’s office after October 1, 2019, to provide clarity in the representation of cases relating to Medicaid fraud and abuse, and to limit liability of employee actions when the employee is acting in good faith.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.