W. Va. Code R. § 85-18-13

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 85-18-13 - Auditing, Monitoring and Inspections; Record Keeping

13.1. Preservation of records. Every self-insured employer shall keep, preserve and maintain complete records showing in detail all expenditures for payroll and the separation of such expenditures in the various classifications of the employer's business. The employer shall keep such additional information necessary to determine classification of the employer's activities as well as other information necessary for a risk assessment. Records shall be preserved for not less than ten (10) years after the respective times of the transaction upon which the records are based. The employer shall retain all records for periods in excess of ten (10) years in matters involving possible fraud or failure to report or disputes with the Commissioner until the Commissioner or appropriate administrative, judicial or appellate body finally resolves the matter and the time for appeal has been exhausted.

13.2. Pursuant to W. Va. Code § 23-2-2(a), each self-insured employer shall furnish to the Commissioner, upon request, all information required to determine risk assessment, the amount of surcharges and assessments owed, or to carry out any other duties under chapter twenty-three of the West Virginia Code and the rules promulgated thereunder. This information may include, but is not limited to, the number of employees employed by the employer during a pertinent period and the names, social security numbers, payroll during relevant periods, occupations and classification information of the self-insured employer's employees,.

13.3. Preservation of claims records. Every self-insured employer is required to keep, preserve and maintain all records relevant to workers' compensation claims.

13.4. Inspections of records; failure to maintain records.

a. The self-insured employer shall keep available for inspection at any reasonable time by the duly authorized representatives of the Commissioner:

1. All accounting records, books, records, papers and documents, whether in hard copy or electronic form, reflecting the amount and the classifications of the payroll expenditures of an employer, as well as the nature of the business operation; and

2. All records relevant to workers' compensation claims, whether in hard copy or electronic from.

b. The Commissioner shall review claims records of the employer on an annual basis or more frequently as the Commissioner determines in his or her sole discretion to be necessary.

c. If any employer fails to keep, preserve and maintain the records and other information required by this section, or fails to make such records and information available for inspection, the Commissioner may revoke the employer's self-insurance status or, in the Commissioner's discretion, impose other penalties on the self-insured employer described in this section.

13.5. Auditing records; adjustments. The Commissioner may at any reasonable time, audit any or all books, records, papers, documents, operations and payroll of an employer for the purpose of verifying the correctness of reports made by an employer or such other reports as may be required by the Commissioner or by State or federal law. The Commissioner may make adjustments, including adjustments to the amount of payroll expenditures, surcharge rates and assessment rates.

13.6. In order to inspect, audit or review information specified in this rule including, but not limited to payroll and claims records, the Commissioner may direct that an agent or employee of the Commissioner audit the information referred to in this section during the regular business hours of the employer or at another reasonable time and place within the State of West Virginia. The employer shall permit the audit to occur and shall cooperate with the auditors so that the audit may be successfully completed. Failure to cooperate with an inspection or audit may result in revocation of the employer's self-insurance status or, in the Commissioner's discretion, impose penalties on the self-insured employer.

13.7. Either as an addition to or as part of the audit permitted under this rule, the Commissioner may convene an administrative hearing or conduct a deposition for the purpose of receiving the information in testimonial or evidentiary form. The Commissioner, his or her designee, an inspector or a designated hearing officer may issue subpoenas and compel the attendance of witnesses and the production of pertinent books, accounting records, accounts, papers, records, documents, and testimony at any such hearing or deposition. Any administrative hearing or deposition shall be convened and conducted in accordance with 85 CSR 7, "Rules for Selected Hearings," and the Commissioner may have any employer or officer, agent, or employee of any employer examined under oath or affirmation. A deposition may be held pursuant to this subsection even if a hearing regarding the employer has not been previously noticed or requested; provided that adequate notice of the deposition is given to all interested parties known to the Commissioner.

13.8. The request for information provided for by chapter twenty-three of the West Virginia Code or rules promulgated thereunder, the audit provided for by this rule, or the hearing provided for by this rule may be conducted at any time when necessary to carry out the purposes of chapter twenty-three of the West Virginia Code or the rules promulgated thereunder.

13.9. Noncompliance Penalties. Penalties may be assessed against self-insured employers who fail to comply with any provisions of chapter twenty-three of the West Virginia Code or rules promulgated thereunder with regard to their self-insured status, including, but not limited to, failing to timely administer claims, failing to timely pay benefits, failing to properly, timely and accurately report requested information and failing to remit surcharges and assessments as required. The penalty amount will be based upon the employer's overall compliance as determined by the Commissioner's review of the employer's records and conduct.

a. The penalty assessed under this subsection is in the sole discretion of the Commissioner, not to exceed $500 per occurrence of non-compliance.

b. The assessment and payment of penalties under this section shall not prevent the Commissioner from making recommendations to the Industrial Council concerning the employer's self-insurance status.

c. In addition to penalties as described in this section, if the Commissioner, in his or her sole discretion, believes that it would be effective, the Commissioner may place a self-insured employer on a corrective action plan to remediate non-compliance issues. The corrective action plan shall be established with standards, time frames and other parameters as deemed appropriate by the Commissioner. Failure by a self-insured employer to comply with a corrective action plan may result in the imposition of additional penalties, including monetary penalties or revocation of self-insured status.

W. Va. Code R. § 85-18-13