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Legally Speaking

 

Issue: December, 2007
Author: Steven D. Olmstead

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Protecting Wyoming's Vulnerable Adults

The Medicaid Fraud Control Unit (MFCU) of the Wyoming Attorney General’s Office operates in response to federal mandate (Public Law 95-142, Implemented by Title XIX of the Social Security Act, 42 USC 1396), to identify, investigate, and prosecute Medicaid fraud perpetrated by providers of the full range of medical services and assistance under the Medicaid program and fraud in the administration of the program. The Medicare-Medicaid Anti-Fraud and Abuse Amendments, which authorized the establishment and funding for Medicaid Fraud Control Units, were passed by both Houses of Congress and signed into law on October 25, 1977. The objective of this law, Public Law (P.L.) 95-142, was " . . . to strengthen the capability of the Government to detect, prosecute, and punish fraudulent activities under the Medicare and Medicaid programs. . ."

Pursuant to this same law, the MFCU also identifies, investigates, and prosecutes abuse to patients of health care facilities that receive Medicaid funds, misappropriation of patient's private funds in such facilities, as well as patient abuse in non-Medicaid funded board and care facilities (expanded authority in accordance with Pub. Law 106-170). Pursuant to the federal law, this investigation/prosecution program of the MFCU must be separate and apart from the Medicaid program operated by the single state agency within the Wyoming Department of Health. The governing federal regulations for the MFCU are located at 42 CFR §1007, et seq.

In 1994, the Wyoming Legislature appropriated funds to the Office of the Attorney General to establish a Medicaid Fraud Control Unit. The MFCU derives its state authority from this legislation and an Executive Order of the Governor of the State of Wyoming. The Attorney General, through the MFCU, shall investigate any allegations of Medicaid fraud or abuse arising in any county of the State of Wyoming involving providers of Medicaid services. Additionally, unit attorneys may be appointed as Special Assistant United States Attorneys for the prosecution of fraud cases in the United States District Court for the District of Wyoming.

The Wyoming MFCU operates in accordance with 42 CFR §1007.13, regarding staffing requirements of a licensed attorney, who also serves as the Director of the Wyoming MFCU, a senior investigator, who has law enforcement authority through the Wyoming Division of Criminal Investigation, and an auditor. In addition to this required staff, the MFCU also has administrative support with an office manager. With this type of organization, the MFCU works as a type of task force focused on provider fraud, as well as, recipient abuse, neglect and exploitation.

One of the specific duties and responsibilities of the MFCU is to review and investigate complaints alleging abuse or neglect of patients in health care facilities receiving payments under the state’s Medicaid program, as well as to review and investigate complaints of misappropriation of patient’s private funds in such facilities.

An ever increasing workload for the MFCU involves the investigation of reported cases of abuse, neglect and exploitation. Although the majority of services the Medicaid program provides is for young recipients who are under the age of eighteen (18), it also provides for services for recipients who are over the age of sixty (60). However, the majority of abuse, neglect and exploitation cases investigated by the MFCU involve vulnerable adults. The vulnerable adult “means any person eighteen (18) years of age or older who is unable to manage and take care of himself or his money, assets or property without assistance as a result of advanced age or physical or mental disability.”

The MFCU participates with a number of other individuals, governmental agencies, or organizations who are concerned with abuse, neglect, and exploitation of vulnerable adults in Wyoming. The authority for such participation and coordination of a state adult protection team is found in W.S. §35-20-104. The state’s adult protection team has made great strides in the past two years in organizing and taking steps to prevent abuse, neglect, and exploitation of the vulnerable adult population in Wyoming. Some noteworthy work done by the state adult protection team was to work with the Wyoming Legislature during the 2007 session to amend and improve the adult protection statutes.

Some of the particular changes, which went into effect on July 1, 2007, are found in W.S. §35-20-102, within certain definitions. A change occurred under the definition of “abuse” by adding a specific reference to photographing vulnerable adults in violation of W.S. §6-4-304(b), pertaining to “voyeurism.” Another change was the specific definition of “intimidation,” which means “the communication by word or act to a vulnerable adult that he, his family, friends or pets will be deprived of food, shelter, clothing, supervision, prescribed medication, physical or mental health care and other medical care necessary to maintain a vulnerable adult’s health, financial support, or will suffer physical violence.” Finally, another important addition to the definition of “caregiver” is the “[a]cceptance of a legal obligation or responsibility to the vulnerable through a power of attorney, advanced health care directive or other legal designation.”

The Wyoming Legislature expanded the definition of “exploitation” by adding a section that pertains to the services of third parties for the profit or advantage of a person or persons to the detriment of a vulnerable adult; as well as, force, compel, coerce or entice a vulnerable adult to perform services for the profit or advantage of another against the will of the vulnerable adult.

In Wyoming, abuse, neglect, and exploitation offenses are generally prosecuted under W.S. §6-2-507. The Wyoming Legislature amended the statute by substituting the term “caregiver” with “person.” The legislature also added “intimidation” and “exploitation” to the list of offenses that can be charged in violation of this statute.

Wyoming is a mandatory reporting state for those with information regarding suspected abuse, neglect or exploitation. That means any person or agency who knows or has reasonable cause to believe that a vulnerable adult is being or has been abused, neglected, exploited, intimidated, or abandoned or committing self neglect shall report such information immediately to a law enforcement agency or to the Wyoming Department of Family Services. The MFCU, as a law enforcement agency, is mandated by federal law to investigate these reports if they occur in a Medicaid funded facility.

The recent changes in the Wyoming adult protection statutes under Title 35 should go a long way in the reporting and prosecution of those who prey upon vulnerable adults. It is the desire of the Wyoming MFCU to reduce the incidents of abuse, neglect, and exploitation of vulnerable adults, and to prosecute those who violate the vulnerable adult protection laws.


Steve Olmstead is a Senior Assistant Attorney General and a Special Assistant United States Attorney. He is the Director of the Wyoming Medicaid Fraud Control Unit in the Wyoming Attorney General’s Office.


Copyright © 2007 – Wyoming State Bar

     

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