H.B. No. 1720
AN ACT
relating to certain facilities and care providers, including
providers under the state Medicaid program and to improving health
care provider accountability and efficiency under the child health
plan and Medicaid programs; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 411.1143, Government Code, is amended by
amending Subsection (a) and adding Subsection (a-1) to read as
follows:
(a) The Health and Human Services Commission, [or] an agency
operating part of the medical assistance program under Chapter 32,
Human Resources Code, or the office of inspector general
established under Chapter 531, Government Code, is entitled to
obtain from the department the criminal history record information
maintained by the department that relates to a provider under the
medical assistance program or a person applying to enroll as a
provider under the medical assistance program.
(a-1) Criminal history record information an agency or the
office of inspector general is authorized to obtain under
Subsection (a) includes criminal history record information
relating to:
(1) a person with a direct or indirect ownership or
control interest, as defined by 42 C.F.R. Section 455.101, in a
provider of five percent or more; and
(2) a person whose information is required to be
disclosed in accordance with 42 C.F.R. Part 1001.
SECTION 2. Subchapter B, Chapter 531, Government Code, is
amended by adding Section 531.024161 to read as follows:
Sec. 531.024161. REIMBURSEMENT CLAIMS FOR CERTAIN MEDICAID
OR CHIP SERVICES INVOLVING SUPERVISED PROVIDERS. (a) If a
provider, including a nurse practitioner or physician assistant,
under the Medicaid or child health plan program provides a referral
for or orders health care services for a recipient or enrollee, as
applicable, at the direction or under the supervision of another
provider, and the referral or order is based on the supervised
provider's evaluation of the recipient or enrollee, the names and
associated national provider identifier numbers of the supervised
provider and the supervising provider must be included on any claim
for reimbursement submitted by a provider based on the referral or
order. For purposes of this section, "national provider
identifier" means the national provider identifier required under
Section 1128J(e), Social Security Act (42 U.S.C. Section
1320a-7k(e)).
(b) The executive commissioner shall adopt rules necessary
to implement this section.
SECTION 3. Subdivision (2), Subsection (g), Section
531.102, Government Code, is amended to read as follows:
(2) In addition to other instances authorized under
state or federal law, the office shall impose without prior notice a
hold on payment of claims for reimbursement submitted by a provider
to compel production of records, [or] when requested by the state's
Medicaid fraud control unit, or on receipt of reliable evidence
that the circumstances giving rise to the hold on payment involve
fraud or wilful misrepresentation under the state Medicaid program
in accordance with 42 C.F.R. Section 455.23, as applicable. The
office must notify the provider of the hold on payment in accordance
with 42 C.F.R. Section 455.23(b) [not later than the fifth working
day after the date the payment hold is imposed].
SECTION 4. The heading to Section 531.1031, Government
Code, is amended to read as follows:
Sec. 531.1031. DUTY TO EXCHANGE INFORMATION [REGARDING
ALLEGATIONS OF MEDICAID FRAUD OR ABUSE].
SECTION 5. Subdivision (2), Subsection (a), Section
531.1031, Government Code, is amended to read as follows:
(2) "Participating agency" means:
(A) the Medicaid fraud enforcement divisions of
the office of the attorney general; [and]
(B) each board or agency with authority to
license, register, regulate, or certify a health care professional
or managed care organization that may participate in the state
Medicaid program; and
(C) the commission's office of inspector
general.
SECTION 6. Section 531.1031, Government Code, is amended by
amending Subsections (b) and (c) and adding Subsection (c-1) to
read as follows:
(b) This section applies only to criminal history record
information held by a participating agency that relates to a health
care professional and information held by a participating agency
that relates to a health care professional or managed care
organization that is the subject of an investigation by a
participating agency for alleged fraud or abuse under the state
Medicaid program.
(c) A participating agency may submit to another
participating agency a written request for information described by
Subsection (b) regarding a health care professional or managed care
organization [that is the subject of an investigation by the
participating agency to any other participating agency]. The
participating agency that receives the request shall provide the
requesting agency with the information regarding the health care
professional or managed care organization unless:
(1) the release of the information would jeopardize an
ongoing investigation or prosecution by the participating agency
with possession of the information; or
(2) the release of the information is prohibited by
other law.
(c-1) Notwithstanding any other law, a participating agency
may enter into a memorandum of understanding or agreement with
another participating agency for the purpose of exchanging criminal
history record information relating to a health care professional
that both participating agencies are authorized to access under
Chapter 411. Confidential criminal history record information in
the possession of a participating agency that is provided to
another participating agency in accordance with this subsection
remains confidential while in the possession of the participating
agency that receives the information.
SECTION 7. Subchapter C, Chapter 531, Government Code, is
amended by adding Sections 531.1131, 531.1132, and 531.117 to read
as follows:
Sec. 531.1131. FRAUD AND ABUSE RECOVERY BY CERTAIN PERSONS;
RETENTION OF RECOVERED AMOUNTS. (a) If a managed care
organization's special investigative unit under Section
531.113(a)(1) or the entity with which the managed care
organization contracts under Section 531.113(a)(2) discovers fraud
or abuse in the Medicaid program or the child health plan program,
the unit or entity shall:
(1) immediately and contemporaneously notify the
commission's office of inspector general and the office of the
attorney general;
(2) subject to Subsection (b), begin payment recovery
efforts; and
(3) ensure that any payment recovery efforts in which
the organization engages are in accordance with applicable rules
adopted by the executive commissioner.
(b) If the amount sought to be recovered under Subsection
(a)(2) exceeds $100,000, the managed care organization's special
investigative unit or contracted entity described by Subsection (a)
may not engage in payment recovery efforts if, not later than the
10th business day after the date the unit or entity notified the
commission's office of inspector general and the office of the
attorney general under Subsection (a)(1), the unit or entity
receives a notice from either office indicating that the unit or
entity is not authorized to proceed with recovery efforts.
(c) A managed care organization may retain any money
recovered under Subsection (a)(2) by the organization's special
investigative unit or contracted entity described by Subsection
(a).
(d) A managed care organization shall submit a quarterly
report to the commission's office of inspector general detailing
the amount of money recovered under Subsection (a)(2).
(e) The executive commissioner shall adopt rules necessary
to implement this section, including rules establishing due process
procedures that must be followed by managed care organizations when
engaging in payment recovery efforts as provided by this section.
Sec. 531.1132. ANNUAL REPORT ON CERTAIN FRAUD AND ABUSE
RECOVERIES. Not later than December 1 of each year, the commission
shall prepare and submit a report to the legislature relating to the
amount of money recovered during the preceding 12-month period as a
result of investigations and recovery efforts made under Sections
531.113 and 531.1131 by special investigative units or entities
with which a managed care organization contracts under Section
531.113(a)(2). The report must specify the amount of money retained
by each managed care organization under Section 531.1131(c).
Sec. 531.117. RECOVERY AUDIT CONTRACTORS. To the extent
required under Section 1902(a)(42), Social Security Act (42 U.S.C.
Section 1396a(a)(42)), the commission shall establish a program
under which the commission contracts with one or more recovery
audit contractors for purposes of identifying underpayments and
overpayments under the Medicaid program and recovering the
overpayments.
SECTION 8. Subchapter D, Chapter 62, Health and Safety
Code, is amended by adding Section 62.1561 to read as follows:
Sec. 62.1561. PROHIBITION OF CERTAIN HEALTH CARE PROVIDERS.
The executive commissioner of the commission shall adopt rules for
prohibiting a person from participating in the child health plan
program as a health care provider for a reasonable period, as
determined by the executive commissioner, if the person:
(1) fails to repay overpayments under the program; or
(2) owns, controls, manages, or is otherwise
affiliated with and has financial, managerial, or administrative
influence over a provider who has been suspended or prohibited from
participating in the program.
SECTION 9. Section 142.001, Health and Safety Code, is
amended by adding Subdivisions (11-a), (11-b), and (12-a) to read
as follows:
(11-a) "Department" means the Department of Aging and
Disability Services.
(11-b) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
(12-a) "Home and community support services agency
administrator" or "administrator" means the person who is
responsible for implementing and supervising the administrative
policies and operations of the home and community support services
agency and for administratively supervising the provision of all
services to agency clients on a day-to-day basis.
SECTION 10. Section 142.0025, Health and Safety Code, is
amended to read as follows:
Sec. 142.0025. TEMPORARY LICENSE. If a person is in the
process of becoming certified by the United States Department of
Health and Human Services to qualify as a certified agency, the
department may issue a temporary home and community support
services agency license to the person authorizing the person to
provide certified home health services. A temporary license is
effective as provided by [board] rules adopted by the executive
commissioner.
SECTION 11. Section 142.009, Health and Safety Code, is
amended by adding Subsections (a-1) and (i) and amending Subsection
(g) to read as follows:
(a-1) A license applicant or license holder must provide the
department representative conducting the survey with a reasonable
and safe workspace at the premises. The executive commissioner may
adopt rules to implement this subsection.
(g) After a survey of a home and community support services
agency by the department, the department shall provide to the home
and community support services [chief executive officer of the]
agency administrator:
(1) specific and timely written notice of the official
findings of the survey, including:
(A) the specific nature of the survey;
(B) any alleged violations of a specific statute
or rule;
(C) the specific nature of any finding regarding
an alleged violation or deficiency; and
(D) if a deficiency is alleged, the severity of
the deficiency;
(2) information on the identity, including the name
[signature], of each department representative conducting or[,]
reviewing[, or approving] the results of the survey and the date on
which the department representative acted on the matter; and
(3) if requested by the agency, copies of all
documents relating to the survey maintained by the department or
provided by the department to any other state or federal agency that
are not confidential under state law.
(i) Except as provided by Subsection (h), the department may
not renew an initial home and community support services agency
license unless the department has conducted an initial on-site
survey of the agency.
SECTION 12. The heading to Section 142.0091, Health and
Safety Code, is amended to read as follows:
Sec. 142.0091. [SURVEYOR] TRAINING.
SECTION 13. Section 142.0091, Health and Safety Code, is
amended by amending Subsection (b) and adding Subsection (c) to
read as follows:
(b) In developing and updating the training required by
Subsection (a) [this section], the department shall consult with
and include providers of home health, hospice, and personal
assistance services, recipients of those services and their family
members, and representatives of appropriate advocacy
organizations.
(c) The department at least semiannually shall provide
joint training for home and community support services agencies and
surveyors on subjects that address the 10 most common violations of
federal or state law by home and community support services
agencies. The department may charge a home and community support
services agency a fee, not to exceed $50 per person, for the
training.
SECTION 14. Subchapter A, Chapter 142, Health and Safety
Code, is amended by adding Section 142.0104 to read as follows:
Sec. 142.0104. CHANGE IN APPLICATION INFORMATION. (a) If
certain application information as specified by executive
commissioner rule changes after the applicant submits an
application to the department for a license under this chapter or
after the department issues the license, the license holder shall
report the change to the department and pay a fee not to exceed $50
not later than the time specified by executive commissioner rule.
(b) The executive commissioner by rule shall:
(1) specify the information provided in an application
that a license holder shall report to the department if the
information changes;
(2) prescribe the time for reporting a change in the
application information required by Subdivision (1);
(3) establish which changes required to be reported
under Subdivision (1) will require department evaluation and
approval; and
(4) set the amount of a late fee to be assessed against
a license holder who fails to report a change in the application
information within the time prescribed under Subdivision (2).
SECTION 15. Subsection (a), Section 142.011, Health and
Safety Code, is amended to read as follows:
(a) The department may deny a license application or suspend
or revoke the license of a person who:
(1) fails to comply with the rules or standards for
licensing required by this chapter; or
(2) engages in conduct that violates Section 102.001,
Occupations Code [161.091].
SECTION 16. Subsections (a), (b), and (c), Section 142.012,
Health and Safety Code, are amended to read as follows:
(a) The executive commissioner [board, with the
recommendations of the council,] shall adopt rules necessary to
implement this chapter. The executive commissioner may adopt rules
governing the duties and responsibilities of home and community
support services agency administrators, including rules regarding:
(1) an administrator's management of daily operations
of the home and community support services agency;
(2) an administrator's responsibility for supervising
the provision of quality care to agency clients;
(3) an administrator's implementation of agency policy
and procedures; and
(4) an administrator's responsibility to be available
to the agency at all times in person or by telephone.
(b) The executive commissioner [board] by rule shall set
minimum standards for home and community support services agencies
licensed under this chapter that relate to:
(1) qualifications for professional and
nonprofessional personnel, including volunteers;
(2) supervision of professional and nonprofessional
personnel, including volunteers;
(3) the provision and coordination of treatment and
services, including support and bereavement services, as
appropriate;
(4) the management, ownership, and organizational
structure, including lines of authority and delegation of
responsibility and, as appropriate, the composition of an
interdisciplinary team;
(5) clinical and business records;
(6) financial ability to carry out the functions as
proposed;
(7) safety, fire prevention, and sanitary standards
for residential units and inpatient units; and
(8) any other aspects of home health, hospice, or
personal assistance services as necessary to protect the public.
(c) The initial minimum standards adopted [by the board]
under Subsection (b) for hospice services must be at least as
stringent as the conditions of participation for a Medicare
certified provider of hospice services in effect on April 30, 1993,
under Title XVIII, Social Security Act (42 U.S.C. Section 1395 et
seq.).
SECTION 17. Subsection (e), Section 242.032, Health and
Safety Code, is amended to read as follows:
(e) In making the evaluation required by Subsection (d), the
department shall require the applicant or license holder to file a
sworn affidavit of a satisfactory compliance history and any other
information required by the department to substantiate a
satisfactory compliance history relating to each state or other
jurisdiction in which the applicant or license holder and any other
person described by Subsection (d) operated an institution at any
time before [during the five-year period preceding] the date on
which the application is made. The department by rule shall
determine what constitutes a satisfactory compliance history. The
department may consider and evaluate the compliance history of the
applicant and any other person described by Subsection (d) for any
period during which the applicant or other person operated an
institution in this state or in another state or jurisdiction. The
department may also require the applicant or license holder to file
information relating to the history of the financial condition of
the applicant or license holder and any other person described by
Subsection (d) with respect to an institution operated in another
state or jurisdiction at any time before [during the five-year
period preceding] the date on which the application is made.
SECTION 18. Subsection (b), Section 242.0615, Health and
Safety Code, is amended to read as follows:
(b) Exclusion of a person under this section must extend for
a period of at least two years and[, but] may extend throughout the
person's lifetime or existence [not exceed a period of 10 years].
SECTION 19. Section 250.001, Health and Safety Code, is
amended by amending Subdivision (1) and adding Subdivisions (3-a)
and (3-b) to read as follows:
(1) "Nurse aide registry" means a list maintained by
the [Texas] Department of Aging and Disability [Human] Services of
nurse aides under the Omnibus Budget Reconciliation Act of 1987
(Pub. L. No. 100-203).
(3-a) "Financial management services agency" means an
entity that contracts with the Department of Aging and Disability
Services to serve as a fiscal and employer agent for an individual
employer in the consumer-directed service option described by
Section 531.051, Government Code.
(3-b) "Individual employer" means an individual or
legally authorized representative who participates in the
consumer-directed service option described by Section 531.051,
Government Code, and is responsible for hiring service providers to
deliver program services.
SECTION 20. Section 250.002, Health and Safety Code, is
amended by amending Subsection (a) and adding Subsection (c-1) to
read as follows:
(a) A facility, a regulatory agency, a financial management
services agency on behalf of an individual employer, or a private
agency on behalf of a facility is entitled to obtain from the
Department of Public Safety of the State of Texas criminal history
record information maintained by the Department of Public Safety
that relates to a person who is:
(1) an applicant for employment at a facility other
than a facility licensed under Chapter 142;
(2) an employee of a facility other than a facility
licensed under Chapter 142; [or]
(3) an applicant for employment at or an employee of a
facility licensed under Chapter 142 whose employment duties would
or do involve direct contact with a consumer in the facility; or
(4) an applicant for employment by or an employee of an
individual employer.
(c-1) A financial management services agency shall forward
criminal history record information received under this section to
the individual employer requesting the information.
SECTION 21. Section 250.003, Health and Safety Code, is
amended by amending Subsection (a) and adding Subsection (c-1) to
read as follows:
(a) A facility or individual employer may not employ an
applicant:
(1) if the facility or individual employer determines,
as a result of a criminal history check, that the applicant has been
convicted of an offense listed in this chapter that bars employment
or that a conviction is a contraindication to employment with the
consumers the facility or individual employer serves;
(2) if the applicant is a nurse aide, until the
facility further verifies that the applicant is listed in the nurse
aide registry; and
(3) until the facility verifies that the applicant is
not designated in the registry maintained under this chapter or in
the employee misconduct registry maintained under Section 253.007
as having a finding entered into the registry concerning abuse,
neglect, or mistreatment of a consumer of a facility, or
misappropriation of a consumer's property.
(c-1) An individual employer shall immediately discharge
any employee whose criminal history check reveals conviction of a
crime that bars employment or that the individual employer
determines is a contraindication to employment as provided by this
chapter.
SECTION 22. Section 250.004, Health and Safety Code, is
amended to read as follows:
Sec. 250.004. CRIMINAL HISTORY RECORD OF EMPLOYEES.
(a) Identifying information of an employee in a covered facility
or of an employee of an individual employer shall be submitted
electronically, on disk, or on a typewritten form to the Department
of Public Safety to obtain the person's criminal conviction record
when the person applies for employment and at other times as the
facility or individual employer may determine appropriate. In this
subsection, "identifying information" includes:
(1) the complete name, race, and sex of the employee;
(2) any known identifying number of the employee,
including social security number, driver's license number, or state
identification number; and
(3) the employee's date of birth.
(b) If the Department of Public Safety reports that a person
has a criminal conviction of any kind, the conviction shall be
reviewed by the facility, the financial management services agency,
or the individual employer to determine if the conviction may bar
the person from employment in a facility or by the individual
employer under Section 250.006 or if the conviction may be a
contraindication to employment.
SECTION 23. Section 250.005, Health and Safety Code, is
amended to read as follows:
Sec. 250.005. NOTICE AND OPPORTUNITY TO BE HEARD CONCERNING
ACCURACY OF INFORMATION. (a) If a facility, financial management
services agency, or individual employer believes that a conviction
may bar a person from employment in a facility or by the individual
employer under Section 250.006 or may be a contraindication to
employment, the facility or individual employer shall notify the
applicant or employee.
(b) The Department of Public Safety of the State of Texas
shall give a person notified under Subsection (a) the opportunity
to be heard concerning the accuracy of the criminal history record
information and shall notify the facility or individual employer if
inaccurate information is discovered.
SECTION 24. Subsections (a) and (b), Section 250.006,
Health and Safety Code, are amended to read as follows:
(a) A person for whom the facility or the individual
employer is entitled to obtain criminal history record information
may not be employed in a facility or by an individual employer if
the person has been convicted of an offense listed in this
subsection:
(1) an offense under Chapter 19, Penal Code (criminal
homicide);
(2) an offense under Chapter 20, Penal Code
(kidnapping and unlawful restraint);
(3) an offense under Section 21.02, Penal Code
(continuous sexual abuse of young child or children), or Section
21.11, Penal Code (indecency with a child);
(4) an offense under Section 22.011, Penal Code
(sexual assault);
(5) an offense under Section 22.02, Penal Code
(aggravated assault);
(6) an offense under Section 22.04, Penal Code (injury
to a child, elderly individual, or disabled individual);
(7) an offense under Section 22.041, Penal Code
(abandoning or endangering child);
(8) an offense under Section 22.08, Penal Code (aiding
suicide);
(9) an offense under Section 25.031, Penal Code
(agreement to abduct from custody);
(10) an offense under Section 25.08, Penal Code (sale
or purchase of a child);
(11) an offense under Section 28.02, Penal Code
(arson);
(12) an offense under Section 29.02, Penal Code
(robbery);
(13) an offense under Section 29.03, Penal Code
(aggravated robbery);
(14) an offense under Section 21.08, Penal Code
(indecent exposure);
(15) an offense under Section 21.12, Penal Code
(improper relationship between educator and student);
(16) an offense under Section 21.15, Penal Code
(improper photography or visual recording);
(17) an offense under Section 22.05, Penal Code
(deadly conduct);
(18) an offense under Section 22.021, Penal Code
(aggravated sexual assault);
(19) an offense under Section 22.07, Penal Code
(terroristic threat);
(20) an offense under Section 33.021, Penal Code
(online solicitation of a minor);
(21) an offense under Section 34.02, Penal Code (money
laundering);
(22) an offense under Section 35A.02, Penal Code
(Medicaid fraud);
(23) an offense under Section 42.09, Penal Code
(cruelty to animals); or
(24) a conviction under the laws of another state,
federal law, or the Uniform Code of Military Justice for an offense
containing elements that are substantially similar to the elements
of an offense listed by this subsection.
(b) A person may not be employed in a position the duties of
which involve direct contact with a consumer in a facility or may
not be employed by an individual employer before the fifth
anniversary of the date the person is convicted of:
(1) an offense under Section 22.01, Penal Code
(assault), that is punishable as a Class A misdemeanor or as a
felony;
(2) an offense under Section 30.02, Penal Code
(burglary);
(3) an offense under Chapter 31, Penal Code (theft),
that is punishable as a felony;
(4) an offense under Section 32.45, Penal Code
(misapplication of fiduciary property or property of a financial
institution), that is punishable as a Class A misdemeanor or a
felony;
(5) an offense under Section 32.46, Penal Code
(securing execution of a document by deception), that is punishable
as a Class A misdemeanor or a felony;
(6) an offense under Section 37.12, Penal Code (false
identification as peace officer); or
(7) an offense under Section 42.01(a)(7), (8), or (9),
Penal Code (disorderly conduct).
SECTION 25. Subsections (a) and (b), Section 250.007,
Health and Safety Code, are amended to read as follows:
(a) The criminal history records are for the exclusive use
of the regulatory agency, the requesting facility, the private
agency on behalf of the requesting facility, the financial
management services agency on behalf of the individual employer,
the individual employer, and the applicant or employee who is the
subject of the records.
(b) All criminal records and reports and the information
they contain that are received by the regulatory agency or private
agency for the purpose of being forwarded to the requesting
facility or received by the financial management services agency
under this chapter are privileged information.
SECTION 26. Subsection (a), Section 250.009, Health and
Safety Code, is amended to read as follows:
(a) A facility, [or] an officer or employee of a facility, a
financial management services agency, or an individual employer is
not civilly liable for failure to comply with this chapter if the
facility, financial management services agency, or individual
employer makes a good faith effort to comply.
SECTION 27. Section 22.039(c), Human Resources Code, is
amended to read as follows:
(c) The department shall semiannually provide training for
surveyors and providers on subjects that address [at least one of]
the 10 most common violations by long-term care facilities of
[under] federal or state law. The department may charge a fee not to
exceed $50 per person for the training.
SECTION 28. Section 32.0322, Human Resources Code, is
amended to read as follows:
Sec. 32.0322. CRIMINAL HISTORY RECORD INFORMATION;
ENROLLMENT OF PROVIDERS. (a) The department or the office of
inspector general established under Chapter 531, Government Code,
may obtain from any law enforcement or criminal justice agency the
criminal history record information that relates to a provider
under the medical assistance program or a person applying to enroll
as a provider under the medical assistance program.
(a-1) The criminal history record information the
department and the office of inspector general are authorized to
obtain under Subsection (a) includes criminal history record
information relating to:
(1) a person with a direct or indirect ownership or
control interest, as defined by 42 C.F.R. Section 455.101, in a
provider of five percent or more; and
(2) a person whose information is required to be
disclosed in accordance with 42 C.F.R. Part 1001.
(b) The executive commissioner of the Health and Human
Services Commission [department] by rule shall establish criteria
for the department or the commission's office of inspector general
to suspend a provider's billing privileges under the medical
assistance program, revoke [revoking] a provider's enrollment
under the program, or deny [denying] a person's application to
enroll as a provider under the [medical assistance] program based
on:
(1) the results of a criminal history check;
(2) any exclusion or debarment of the provider from
participation in a state or federally funded health care program;
(3) the provider's failure to bill for medical
assistance or refer clients for medical assistance within a
12-month period; or
(4) any of the provider screening or enrollment
provisions contained in 42 C.F.R. Part 455, Subpart E.
(c) As a condition of eligibility to participate as a
provider in the medical assistance program, the executive
commissioner of the Health and Human Services Commission by rule
shall:
(1) require a provider or a person applying to enroll
as a provider to disclose:
(A) all persons described by Subsection
(a-1)(1);
(B) any managing employees of the provider; and
(C) an agent or subcontractor of the provider if:
(i) the provider or a person described by
Subsection (a-1)(1) has a direct or indirect ownership interest of
at least five percent in the agent or subcontractor; or
(ii) the provider engages in a business
transaction with the agent or subcontractor that meets the criteria
specified by 42 C.F.R. Section 455.105; and
(2) require disclosure by persons applying for
enrollment as providers and provide for screening of applicants for
enrollment in conformity and compliance with the requirements of 42
C.F.R. Part 455, Subparts B and E.
(d) In adopting rules under this section, the executive
commissioner of the Health and Human Services Commission shall
adopt rules as authorized by and in conformity with 42 C.F.R.
Section 455.470 for the imposition of a temporary moratorium on
enrollment of new providers, or to impose numerical caps or other
limits on the enrollment of providers, that the department or the
commission's office of inspector general, in consultation with the
department, determines have a significant potential for fraud,
waste, or abuse.
SECTION 29. Section 32.039, Human Resources Code, is
amended by amending Subsection (b) and adding Subsection (b-1) to
read as follows:
(b) A person commits a violation if the person:
(1) presents or causes to be presented to the
department a claim that contains a statement or representation the
person knows or should know to be false;
(1-a) engages in conduct that violates Section
102.001, Occupations Code;
(1-b) solicits or receives, directly or indirectly,
overtly or covertly any remuneration, including any kickback,
bribe, or rebate, in cash or in kind for referring an individual to
a person for the furnishing of, or for arranging the furnishing of,
any item or service for which payment may be made, in whole or in
part, under the medical assistance program, provided that this
subdivision does not prohibit the referral of a patient to another
practitioner within a multispecialty group or university medical
services research and development plan (practice plan) for
medically necessary services;
(1-c) solicits or receives, directly or indirectly,
overtly or covertly any remuneration, including any kickback,
bribe, or rebate, in cash or in kind for purchasing, leasing, or
ordering, or arranging for or recommending the purchasing, leasing,
or ordering of, any good, facility, service, or item for which
payment may be made, in whole or in part, under the medical
assistance program;
(1-d) offers or pays, directly or indirectly, overtly
or covertly any remuneration, including any kickback, bribe, or
rebate, in cash or in kind to induce a person to refer an individual
to another person for the furnishing of, or for arranging the
furnishing of, any item or service for which payment may be made, in
whole or in part, under the medical assistance program, provided
that this subdivision does not prohibit the referral of a patient to
another practitioner within a multispecialty group or university
medical services research and development plan (practice plan) for
medically necessary services;
(1-e) offers or pays, directly or indirectly, overtly
or covertly any remuneration, including any kickback, bribe, or
rebate, in cash or in kind to induce a person to purchase, lease, or
order, or arrange for or recommend the purchase, lease, or order of,
any good, facility, service, or item for which payment may be made,
in whole or in part, under the medical assistance program;
(1-f) provides, offers, or receives an inducement in a
manner or for a purpose not otherwise prohibited by this section or
Section 102.001, Occupations Code, to or from a person, including a
recipient, provider, employee or agent of a provider, third-party
vendor, or public servant, for the purpose of influencing or being
influenced in a decision regarding:
(A) selection of a provider or receipt of a good
or service under the medical assistance program;
(B) the use of goods or services provided under
the medical assistance program; or
(C) the inclusion or exclusion of goods or
services available under the medical assistance program; [or]
(2) is a managed care organization that contracts with
the department to provide or arrange to provide health care
benefits or services to individuals eligible for medical assistance
and:
(A) fails to provide to an individual a health
care benefit or service that the organization is required to
provide under the contract with the department;
(B) fails to provide to the department
information required to be provided by law, department rule, or
contractual provision;
(C) engages in a fraudulent activity in
connection with the enrollment in the organization's managed care
plan of an individual eligible for medical assistance or in
connection with marketing the organization's services to an
individual eligible for medical assistance; or
(D) engages in actions that indicate a pattern
of:
(i) wrongful denial of payment for a health
care benefit or service that the organization is required to
provide under the contract with the department; or
(ii) wrongful delay of at least 45 days or a
longer period specified in the contract with the department, not to
exceed 60 days, in making payment for a health care benefit or
service that the organization is required to provide under the
contract with the department; or
(3) fails to maintain documentation to support a claim
for payment in accordance with the requirements specified by
department rule or medical assistance program policy or engages in
any other conduct that a department rule has defined as a violation
of the medical assistance program.
(b-1) A person who commits a violation described by
Subsection (b)(3) is liable to the department for either the amount
paid in response to the claim for payment or the payment of an
administrative penalty in an amount not to exceed $500 for each
violation, as determined by the department.
SECTION 30. Section 32.047, Human Resources Code, is
amended to read as follows:
Sec. 32.047. PROHIBITION OF CERTAIN HEALTH CARE SERVICE
PROVIDERS. (a) A person is permanently prohibited from providing
or arranging to provide health care services under the medical
assistance program if:
(1) the person is convicted of an offense arising from
a fraudulent act under the program; and
(2) the person's fraudulent act results in injury to an
elderly person, as defined by Section 48.002(a)(1) [48.002(1)], a
disabled person, as defined by Section 48.002(a)(8)(A)
[48.002(8)(A)], or a person younger than 18 years of age.
(b) The executive commissioner of the Health and Human
Services Commission shall adopt rules for prohibiting a person from
participating in the medical assistance program as a health care
provider for a reasonable period, as determined by the executive
commissioner, if the person:
(1) fails to repay overpayments under the program; or
(2) owns, controls, manages, or is otherwise
affiliated with and has financial, managerial, or administrative
influence over a provider who has been suspended or prohibited from
participating in the program.
SECTION 31. Subchapter B, Chapter 32, Human Resources Code,
is amended by adding Section 32.068 to read as follows:
Sec. 32.068. IN-PERSON EVALUATION REQUIRED FOR CERTAIN
SERVICES. (a) A medical assistance provider may order or otherwise
authorize the provision of home health services for a recipient
only if the provider has conducted an in-person evaluation of the
recipient within the 12-month period preceding the date the order
or other authorization was issued.
(b) A physician, physician assistant, nurse practitioner,
clinical nurse specialist, or certified nurse-midwife that orders
or otherwise authorizes the provision of durable medical equipment
for a recipient in accordance with Chapter 157, Occupations Code,
and other applicable law, including rules, must certify on the
order or other authorization that the person conducted an in-person
evaluation of the recipient within the 12-month period preceding
the date the order or other authorization was issued.
(c) The executive commissioner of the Health and Human
Services Commission shall adopt rules necessary to implement this
section. The executive commissioner may by rule adopt limited
exceptions to the requirements of this section.
SECTION 32. Subsection (a), Section 103.009, Human
Resources Code, is amended to read as follows:
(a) The department may deny, suspend, or revoke the license
of an applicant or holder of a license who fails to comply with the
rules or standards for licensing required by this chapter or has
committed an act described by Sections 103.012(a)(2)-(7).
SECTION 33. Chapter 103, Human Resources Code, is amended
by adding Sections 103.012 through 103.016 to read as follows:
Sec. 103.012. ADMINISTRATIVE PENALTY. (a) The department
may assess an administrative penalty against a person who:
(1) violates this chapter, a rule, standard, or order
adopted under this chapter, or a term of a license issued under this
chapter;
(2) makes a false statement of a material fact that the
person knows or should know is false:
(A) on an application for issuance or renewal of
a license or in an attachment to the application; or
(B) with respect to a matter under investigation
by the department;
(3) refuses to allow a representative of the
department to inspect:
(A) a book, record, or file required to be
maintained by an adult day-care facility; or
(B) any portion of the premises of an adult
day-care facility;
(4) wilfully interferes with the work of a
representative of the department or the enforcement of this
chapter;
(5) wilfully interferes with a representative of the
department preserving evidence of a violation of this chapter, a
rule, standard, or order adopted under this chapter, or a term of a
license issued under this chapter;
(6) fails to pay a penalty assessed under this chapter
not later than the 30th day after the date the assessment of the
penalty becomes final; or
(7) fails to notify the department of a change of
ownership before the effective date of the change of ownership.
(b) Except as provided by Section 103.013(c), the penalty
may not exceed $500 for each violation.
(c) Each day of a continuing violation constitutes a
separate violation.
(d) The department shall establish gradations of penalties
in accordance with the relative seriousness of the violation.
(e) In determining the amount of a penalty, the department
shall consider any matter that justice may require, including:
(1) the gradations of penalties established under
Subsection (d);
(2) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the prohibited act
and the hazard or potential hazard created by the act to the health
or safety of the public;
(3) the history of previous violations;
(4) the deterrence of future violations; and
(5) the efforts to correct the violation.
(f) A penalty assessed under Subsection (a)(6) is in
addition to the penalty previously assessed and not timely paid.
Sec. 103.013. RIGHT TO CORRECT BEFORE IMPOSITION OF
ADMINISTRATIVE PENALTY. (a) The department may not collect an
administrative penalty from an adult day-care facility under
Section 103.012 if, not later than the 45th day after the date the
facility receives notice under Section 103.014(c), the facility
corrects the violation.
(b) Subsection (a) does not apply to:
(1) a violation that the department determines:
(A) results in serious harm to or death of a
person attending the facility;
(B) constitutes a serious threat to the health
and safety of a person attending the facility; or
(C) substantially limits the facility's capacity
to provide care;
(2) a violation described by Sections
103.012(a)(2)-(7); or
(3) a violation of Section 103.011.
(c) An adult day-care facility that corrects a violation
must maintain the correction. If the facility fails to maintain the
correction until at least the first anniversary after the date the
correction was made, the department may assess and collect an
administrative penalty for the subsequent violation. An
administrative penalty assessed under this subsection is equal to
three times the amount of the original penalty assessed but not
collected. The department is not required to provide the facility
with an opportunity under this section to correct the subsequent
violation.
Sec. 103.014. REPORT RECOMMENDING ADMINISTRATIVE PENALTY;
NOTICE. (a) The department shall issue a preliminary report
stating the facts on which the department concludes that a
violation of this chapter, a rule, standard, or order adopted under
this chapter, or a term of a license issued under this chapter has
occurred if the department has:
(1) examined the possible violation and facts
surrounding the possible violation; and
(2) concluded that a violation has occurred.
(b) The report may recommend a penalty under Section 103.012
and the amount of the penalty.
(c) The department shall give written notice of the report
to the person charged with the violation not later than the 10th day
after the date on which the report is issued. The notice must
include:
(1) a brief summary of the charges;
(2) a statement of the amount of penalty recommended;
(3) a statement of whether the violation is subject to
correction under Section 103.013 and, if the violation is subject
to correction under that section, a statement of:
(A) the date on which the adult day-care facility
must file a plan of correction with the department that the
department shall review and may approve, if satisfactory; and
(B) the date on which the plan of correction must
be completed to avoid assessment of the penalty; and
(4) a statement that the person charged has a right to
a hearing on the occurrence of the violation, the amount of the
penalty, or both.
(d) Not later than the 20th day after the date on which the
notice under Subsection (c) is received, the person charged may:
(1) give to the department written notice that the
person agrees with the department's report and consents to the
recommended penalty; or
(2) make a written request for a hearing.
(e) If the violation is subject to correction under Section
103.013, the adult day-care facility shall submit a plan of
correction to the department for approval not later than the 10th
day after the date on which the notice under Subsection (c) is
received.
(f) If the violation is subject to correction under Section
103.013 and the person reports to the department that the violation
has been corrected, the department shall inspect the correction or
take any other step necessary to confirm the correction and shall
notify the person that:
(1) the correction is satisfactory and a penalty will
not be assessed; or
(2) the correction is not satisfactory and a penalty
is recommended.
(g) Not later than the 20th day after the date on which a
notice under Subsection (f)(2) is received, the person charged with
the violation may:
(1) give to the department written notice that the
person agrees with the department's report and consents to the
recommended penalty; or
(2) make a written request for a hearing.
(h) If the person charged with the violation consents to the
penalty recommended by the department or does not timely respond to
a notice sent under Subsection (c) or (f)(2), the department's
commissioner or the commissioner's designee shall assess the
penalty recommended by the department.
(i) If the department's commissioner or the commissioner's
designee assesses the recommended penalty, the department shall
give written notice of the decision to the person charged with the
violation and the person shall pay the penalty.
Sec. 103.015. ADMINISTRATIVE PENALTY HEARING. (a) An
administrative law judge shall order a hearing and give notice of
the hearing if a person assessed a penalty under Section 103.013(c)
requests a hearing.
(b) The hearing shall be held before an administrative law
judge.
(c) The administrative law judge shall make findings of fact
and conclusions of law regarding the occurrence of a violation of
this chapter, a rule or order adopted under this chapter, or a term
of a license issued under this chapter.
(d) Based on the findings of fact and conclusions of law,
and the recommendation of the administrative law judge, the
department's commissioner or the commissioner's designee by order
shall find:
(1) a violation has occurred and assess an
administrative penalty; or
(2) a violation has not occurred.
(e) Proceedings under this section are subject to Chapter
2001, Government Code.
Sec. 103.016. NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;
INTEREST; REFUND. (a) The department's commissioner or the
commissioner's designee shall give notice of the findings made
under Section 103.015(d) to the person charged with a violation. If
the commissioner or the commissioner's designee finds that a
violation has occurred, the commissioner or the commissioner's
designee shall give to the person charged written notice of:
(1) the findings;
(2) the amount of the administrative penalty;
(3) the rate of interest payable with respect to the
penalty and the date on which interest begins to accrue; and
(4) the person's right to judicial review of the order
of the commissioner or the commissioner's designee.
(b) Not later than the 30th day after the date on which the
order of the department's commissioner or the commissioner's
designee is final, the person assessed the penalty shall:
(1) pay the full amount of the penalty; or
(2) file a petition for judicial review contesting the
occurrence of the violation, the amount of the penalty, or both the
occurrence of the violation and the amount of the penalty.
(c) Notwithstanding Subsection (b), the department may
permit the person to pay a penalty in installments.
(d) If the person does not pay the penalty within the period
provided by Subsection (b) or in accordance with Subsection (c), if
applicable:
(1) the penalty is subject to interest; and
(2) the department may refer the matter to the
attorney general for collection of the penalty and interest.
(e) Interest under Subsection (d)(1) accrues:
(1) at a rate equal to the rate charged on loans to
depository institutions by the New York Federal Reserve Bank; and
(2) for the period beginning on the day after the date
on which the penalty becomes due and ending on the date the penalty
is paid.
(f) If the amount of the penalty is reduced or the
assessment of a penalty is not upheld on judicial review, the
department's commissioner or the commissioner's designee shall:
(1) remit to the person charged the appropriate amount
of any penalty payment plus accrued interest; or
(2) execute a release of the supersedeas bond if one
has been posted.
(g) Accrued interest on the amount remitted by the
department's commissioner or the commissioner's designee under
Subsection (f)(1) shall be paid:
(1) at a rate equal to the rate charged on loans to
depository institutions by the New York Federal Reserve Bank; and
(2) for the period beginning on the date the penalty is
paid and ending on the date the penalty is remitted to the person
charged with the violation.
SECTION 34. Section 531.1131, Government Code, as added by
this Act, applies to the investigation of a fraudulent Medicaid or
child health plan program claim or other program abuse that
commences on or after the effective date of this Act. An
investigation that commences before the effective date of this Act
is governed by the law in effect when the investigation commenced,
and the former law is continued in effect for that purpose.
SECTION 35. As soon as practicable after the effective date
of this Act but not later than July 1, 2012, the executive
commissioner of the Health and Human Services Commission shall
adopt the rules necessary to implement the changes in law made by
this Act to Chapter 142, Health and Safety Code.
SECTION 36. Subsection (e), Section 242.032, Health and
Safety Code, as amended by this Act, applies only to an application,
including a renewal application, filed on or after the effective
date of this Act. An application filed before the effective date of
this Act is governed by the law in effect when the application was
filed, and the former law is continued in effect for that purpose.
SECTION 37. Subsection (b), Section 242.0615, Health and
Safety Code, as amended by this Act, applies only to conduct that
occurs on or after the effective date of this Act. Conduct that
occurs before the effective date of this Act is governed by the law
in effect at the time the conduct occurred, and the former law is
continued in effect for that purpose.
SECTION 38. As soon as practicable after the effective date
of this Act but not later than July 1, 2012, the executive
commissioner of the Health and Human Services Commission shall
adopt rules necessary to implement Section 22.039, Human Resources
Code, as amended by this Act.
SECTION 39. If before implementing any provision of this
Act a state agency determines that a waiver or authorization from a
federal agency is necessary for implementation of that provision,
the agency affected by the provision shall request the waiver or
authorization and may delay implementing that provision until the
waiver or authorization is granted.
SECTION 40. If before implementing any provision of this
Act a state agency determines that a waiver or authorization from a
federal agency is necessary for implementation of that provision,
the agency affected by the provision shall request the waiver or
authorization and may delay implementing that provision until the
waiver or authorization is granted.
SECTION 41. This Act takes effect September 1, 2011.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 1720 was passed by the House on May 4,
2011, by the following vote: Yeas 138, Nays 0, 2 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 1720 on May 27, 2011, by the following vote: Yeas 136, Nays 0,
2 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 1720 was passed by the Senate, with
amendments, on May 23, 2011, by the following vote: Yeas 31, Nays
0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor