By: Nichols S.B. No. 1432
(In the Senate - Filed March 6, 2009; March 17, 2009, read
first time and referred to Committee on Health and Human Services;
April 14, 2009, reported favorably by the following vote: Yeas 9,
Nays 0; April 14, 2009, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the investigation, prosecution, and punishment of
criminal Medicaid fraud and certain other offenses related to
Medicaid fraud; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subdivision (4), Section 242.002, Health and
Safety Code, is amended to read as follows:
(4) "Department" means the [Texas] Department of Aging
and Disability [Human] Services.
SECTION 2. Subsections (a-1), (b), (d), (f), and (g),
Section 22.04, Penal Code, are amended to read as follows:
(a-1) A person commits an offense if the person is an owner,
operator, or employee of a group home, nursing facility, assisted
living facility, intermediate care facility for persons with mental
retardation, or other institutional care facility and the person
intentionally, knowingly, recklessly, or with criminal negligence
by omission causes to a child, elderly individual, or disabled
individual who is a resident of that group home or facility:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury;
or
(3) bodily injury[; or
[(4) exploitation].
(b) An omission that causes a condition described by
Subsection (a)(1), (2), or (3) or (a-1)(1), (2), or (3)[, or (4)] is
conduct constituting an offense under this section if:
(1) the actor has a legal or statutory duty to act; or
(2) the actor has assumed care, custody, or control of
a child, elderly individual, or disabled individual.
(d) For purposes of an omission that causes a condition
described by Subsection (a)(1), (2), or (3), the actor has assumed
care, custody, or control if he has by act, words, or course of
conduct acted so as to cause a reasonable person to conclude that he
has accepted responsibility for protection, food, shelter, and
medical care for a child, elderly individual, or disabled
individual. For purposes of an omission that causes a condition
described by Subsection (a-1)(1), (2), or (3), [or (4),] the actor
acting during the actor's capacity as owner, operator, or employee
of a group home or facility described by Subsection (a-1) is
considered to have accepted responsibility for protection, food,
shelter, and medical care for the child, elderly individual, or
disabled individual who is a resident of the group home or facility.
(f) An offense under Subsection (a)(3) or (a-1)(3) [or (4)]
is a felony of the third degree when the conduct is committed
intentionally or knowingly. When the conduct is engaged in
recklessly, the offense is a state jail felony.
(g) An offense under Subsection (a) is a state jail felony
when the person acts with criminal negligence. An offense under
Subsection (a-1) is a state jail felony when the person, with
criminal negligence and by omission, causes a condition described
by Subsection (a-1)(1), (2), or (3)[, or (4)].
SECTION 3. Subsection (d), Section 32.46, Penal Code, is
amended to read as follows:
(d) In this section:
(1) "Deception" [, "deception"] has the meaning
assigned by Section 31.01.
(2) "Document" includes electronically stored data or
other information that is retrievable in a readable, perceivable
form.
SECTION 4. Subchapter D, Chapter 32, Penal Code, is amended
by adding Section 32.53 to read as follows:
Sec. 32.53. EXPLOITATION OF CHILD, ELDERLY INDIVIDUAL, OR
DISABLED INDIVIDUAL. (a) In this section:
(1) "Child," "elderly individual," and "disabled
individual" have the meanings assigned by Section 22.04.
(2) "Exploitation" means the illegal or improper use
of an individual or of the resources of the individual for monetary
or personal benefit, profit, or gain.
(b) A person commits an offense if the person intentionally,
knowingly, or recklessly causes the exploitation of a child,
elderly individual, or disabled individual.
(c) An offense under this section is a felony of the third
degree.
(d) A person who is subject to prosecution under both this
section and another section of this code may be prosecuted under
either or both sections. Section 3.04 does not apply to criminal
episodes prosecuted under both this section and another section of
this code. If a criminal episode is prosecuted under both this
section and another section of this code and sentences are assessed
for convictions under both sections, the sentences shall run
concurrently.
SECTION 5. Section 35A.01, Penal Code, is amended by adding
Subdivision (10) to read as follows:
(10) "High managerial agent" means a director,
officer, or employee who is authorized to act on behalf of a
provider and has duties of such responsibility that the conduct of
the director, officer, or employee reasonably may be assumed to
represent the policy or intent of the provider.
SECTION 6. Section 35A.02, Penal Code, is amended by
amending Subsection (c) and adding Subsection (e) to read as
follows:
(c) If conduct constituting an offense under this section
also constitutes an offense under another section of this code or
another provision of law, the actor may be prosecuted under either
this section or the other section or provision or both this section
and the other section or provision.
(e) The punishment prescribed for an offense under this
section is increased to the punishment prescribed for the next
highest category of offense if it is shown beyond a reasonable doubt
on the trial of the offense that the actor was a provider or high
managerial agent at the time of the offense.
SECTION 7. Subsection (a), Section 71.02, Penal Code, is
amended to read as follows:
(a) A person commits an offense if, with the intent to
establish, maintain, or participate in a combination or in the
profits of a combination or as a member of a criminal street gang,
he commits or conspires to commit one or more of the following:
(1) murder, capital murder, arson, aggravated
robbery, robbery, burglary, theft, aggravated kidnapping,
kidnapping, aggravated assault, aggravated sexual assault, sexual
assault, forgery, deadly conduct, assault punishable as a Class A
misdemeanor, burglary of a motor vehicle, or unauthorized use of a
motor vehicle;
(2) any gambling offense punishable as a Class A
misdemeanor;
(3) promotion of prostitution, aggravated promotion
of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or
sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or
distribution of a controlled substance or dangerous drug, or
unlawful possession of a controlled substance or dangerous drug
through forgery, fraud, misrepresentation, or deception;
(6) any unlawful wholesale promotion or possession of
any obscene material or obscene device with the intent to wholesale
promote the same;
(7) any offense under Subchapter B, Chapter 43,
depicting or involving conduct by or directed toward a child
younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34, [or] 35, or 35A;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A; or
(13) any offense under Section 37.10.
SECTION 8. Subdivision (4), Subsection (c), Section 22.04,
Penal Code, is repealed.
SECTION 9. The change in law made by this Act applies only
to an offense committed on or after the effective date of this Act.
An offense committed before the effective date of this Act is
covered by the law in effect when the offense was committed, and the
former law is continued in effect for that purpose. For purposes of
this section, an offense was committed before the effective date of
this Act if any element of the offense occurred before that date.
SECTION 10. This Act takes effect September 1, 2009.
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