Texas 2011 - 82nd Regular

Texas Senate Bill SB544 Compare Versions

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1	1	82R24483 EES-F
2	2	By: Seliger, et al. S.B. No. 544
3	3	(Shelton)
4	4	Substitute the following for S.B. No. 544: No.
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to unlawful acts against and criminal offenses involving
10	10	the Medicaid program; providing penalties.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 36.001, Human Resources Code, is amended
13	13	by adding Subdivisions (5-a) and (7-a) to read as follows:
14	14	(5-a) "Material" means having a natural tendency to
15	15	influence or to be capable of influencing.
16	16	(7-a) "Obligation" means a duty, whether or not fixed,
17	17	that arises from:
18	18	(A) an express or implied contractual,
19	19	grantor-grantee, or licensor-licensee relationship;
20	20	(B) a fee-based or similar relationship;
21	21	(C) a statute or regulation; or
22	22	(D) the retention of any overpayment.
23	23	SECTION 2. Section 36.002, Human Resources Code, is amended
24	24	to read as follows:
25	25	Sec. 36.002. UNLAWFUL ACTS. A person commits an unlawful
26	26	act if the person:
27	27	(1) knowingly makes or causes to be made a false
28	28	statement or misrepresentation of a material fact to permit a
29	29	person to receive a benefit or payment under the Medicaid program
30	30	that is not authorized or that is greater than the benefit or
31	31	payment that is authorized;
32	32	(2) knowingly conceals or fails to disclose
33	33	information that permits a person to receive a benefit or payment
34	34	under the Medicaid program that is not authorized or that is greater
35	35	than the benefit or payment that is authorized;
36	36	(3) knowingly applies for and receives a benefit or
37	37	payment on behalf of another person under the Medicaid program and
38	38	converts any part of the benefit or payment to a use other than for
39	39	the benefit of the person on whose behalf it was received;
40	40	(4) knowingly makes, causes to be made, induces, or
41	41	seeks to induce the making of a false statement or
42	42	misrepresentation of material fact concerning:
43	43	(A) the conditions or operation of a facility in
44	44	order that the facility may qualify for certification or
45	45	recertification required by the Medicaid program, including
46	46	certification or recertification as:
47	47	(i) a hospital;
48	48	(ii) a nursing facility or skilled nursing
49	49	facility;
50	50	(iii) a hospice;
51	51	(iv) an intermediate care facility for the
52	52	mentally retarded;
53	53	(v) an assisted living facility; or
54	54	(vi) a home health agency; or
55	55	(B) information required to be provided by a
56	56	federal or state law, rule, regulation, or provider agreement
57	57	pertaining to the Medicaid program;
58	58	(5) except as authorized under the Medicaid program,
59	59	knowingly pays, charges, solicits, accepts, or receives, in
60	60	addition to an amount paid under the Medicaid program, a gift,
61	61	money, a donation, or other consideration as a condition to the
62	62	provision of a service or product or the continued provision of a
63	63	service or product if the cost of the service or product is paid
64	64	for, in whole or in part, under the Medicaid program;
65	65	(6) knowingly presents or causes to be presented a
66	66	claim for payment under the Medicaid program for a product provided
67	67	or a service rendered by a person who:
68	68	(A) is not licensed to provide the product or
69	69	render the service, if a license is required; or
70	70	(B) is not licensed in the manner claimed;
71	71	(7) knowingly makes or causes to be made a claim under
72	72	the Medicaid program for:
73	73	(A) a service or product that has not been
74	74	approved or acquiesced in by a treating physician or health care
75	75	practitioner;
76	76	(B) a service or product that is substantially
77	77	inadequate or inappropriate when compared to generally recognized
78	78	standards within the particular discipline or within the health
79	79	care industry; or
80	80	(C) a product that has been adulterated, debased,
81	81	mislabeled, or that is otherwise inappropriate;
82	82	(8) makes a claim under the Medicaid program and
83	83	knowingly fails to indicate the type of license and the
84	84	identification number of the licensed health care provider who
85	85	actually provided the service;
86	86	(9) knowingly enters into an agreement, combination,
87	87	or conspiracy to defraud the state by obtaining or aiding another
88	88	person in obtaining an unauthorized payment or benefit from the
89	89	Medicaid program or a fiscal agent;
90	90	(10) is a managed care organization that contracts
91	91	with the Health and Human Services Commission or other state agency
92	92	to provide or arrange to provide health care benefits or services to
93	93	individuals eligible under the Medicaid program and knowingly:
94	94	(A) fails to provide to an individual a health
95	95	care benefit or service that the organization is required to
96	96	provide under the contract;
97	97	(B) fails to provide to the commission or
98	98	appropriate state agency information required to be provided by
99	99	law, commission or agency rule, or contractual provision; or
100	100	(C) engages in a fraudulent activity in
101	101	connection with the enrollment of an individual eligible under the
102	102	Medicaid program in the organization's managed care plan or in
103	103	connection with marketing the organization's services to an
104	104	individual eligible under the Medicaid program;
105	105	(11) knowingly obstructs an investigation by the
106	106	attorney general of an alleged unlawful act under this section;
107	107	(12) knowingly makes, uses, or causes the making or
108	108	use of a false record or statement to conceal, avoid, or decrease an
109	109	obligation to pay or transmit money or property to this state under
110	110	the Medicaid program; or
111	111	(13) knowingly engages in conduct that constitutes a
112	112	violation under Section 32.039(b).
113	113	SECTION 3. Section 36.052(a), Human Resources Code, is
114	114	amended to read as follows:
115	115	(a) Except as provided by Subsection (c), a person who
116	116	commits an unlawful act is liable to the state for:
117	117	(1) the amount of any payment or the value of any
118	118	monetary or in-kind benefit provided under the Medicaid program,
119	119	directly or indirectly, as a result of the unlawful act, including
120	120	any payment made to a third party;
121	121	(2) interest on the amount of the payment or the value
122	122	of the benefit described by Subdivision (1) at the prejudgment
123	123	interest rate in effect on the day the payment or benefit was
124	124	received or paid, for the period from the date the benefit was
125	125	received or paid to the date that the state recovers the amount of
126	126	the payment or value of the benefit;
127	127	(3) a civil penalty of:
128	128	(A) not less than $5,500 or the minimum amount
129	129	imposed as provided by 31 U.S.C. Section 3729(a), if that amount
130	130	exceeds $5,500, and not [$5,000 or] more than $15,000 or the maximum
131	131	amount imposed as provided by 31 U.S.C. Section 3729(a), if that
132	132	amount exceeds $15,000, for each unlawful act committed by the
133	133	person that results in injury to an elderly person, as defined by
134	134	Section 48.002(a)(1), a disabled person, as defined by Section
135	135	48.002(a)(8)(A), or a person younger than 18 years of age; or
136	136	(B) not less than $5,500 or the minimum amount
137	137	imposed as provided by 31 U.S.C. Section 3729(a), if that amount
138	138	exceeds $5,500, and not [$5,000 or] more than $11,000 or the maximum
139	139	amount imposed as provided by 31 U.S.C. Section 3729(a), if that
140	140	amount exceeds $11,000, [$10,000] for each unlawful act committed
141	141	by the person that does not result in injury to a person described
142	142	by Paragraph (A); and
143	143	(4) two times the amount of the payment or the value of
144	144	the benefit described by Subdivision (1).
145	145	SECTION 4. Section 36.110(c), Human Resources Code, is
146	146	amended to read as follows:
147	147	(c) A payment to a person under this section shall be made
148	148	from the proceeds of the action. A person receiving a payment
149	149	under this section is also entitled to receive from the defendant an
150	150	amount for reasonable expenses, reasonable attorney's fees, and
151	151	costs that the court finds to have been necessarily incurred. The
152	152	court's determination of expenses, fees, and costs to be awarded
153	153	under this subsection shall be made only after the defendant has
154	154	been found liable in the action or the state settles an action with
155	155	a defendant that the court determined, after a hearing, was fair,
156	156	adequate, and reasonable in accordance with Section 36.107(c).
157	157	SECTION 5. Section 36.113, Human Resources Code, is amended
158	158	by amending Subsection (b) and adding Subsection (c) to read as
159	159	follows:
160	160	(b) A person may not bring an action under this subchapter
161	161	that is based on the public disclosure of allegations or
162	162	transactions in a criminal or civil hearing in which the state or an
163	163	agent of the state is a party, in a legislative or administrative
164	164	report, hearing, audit, or investigation, or from the news media,
165	165	unless the person bringing the action is an original source of the
166	166	information. In this subsection, "original source" means an
167	167	individual who:
168	168	(1) has direct and independent knowledge of the
169	169	information on which the allegations are based and has voluntarily
170	170	provided the information to the state before filing an action under
171	171	this subchapter that is based on the information; or
172	172	(2) has knowledge that is independent of and
173	173	materially adds to the publicly disclosed allegations and who has
174	174	voluntarily provided the information to the state before filing an
175	175	action under this subchapter that is based on the information.
176	176	(c) Before dismissing an action as barred under this
177	177	section, the court shall give the attorney general an opportunity
178	178	to oppose the dismissal.
179	179	SECTION 6. The heading to Section 36.115, Human Resources
180	180	Code, is amended to read as follows:
181	181	Sec. 36.115. RETALIATION [BY EMPLOYER] AGAINST PERSON
182	182	[BRINGING SUIT] PROHIBITED.
183	183	SECTION 7. Section 36.115(a), Human Resources Code, is
184	184	amended to read as follows:
185	185	(a) A person, including an employee, contractor, or agent,
186	186	who is discharged, demoted, suspended, threatened, harassed, or in
187	187	any other manner discriminated against in the terms and conditions
188	188	of employment [by the person's employer] because of a lawful act
189	189	taken by the person in furtherance of an action under this
190	190	subchapter, including investigation for, initiation of, testimony
191	191	for, or assistance in an action filed or to be filed under this
192	192	subchapter, or other efforts taken by the person to stop one or more
193	193	violations of Section 36.002 is entitled to:
194	194	(1) reinstatement with the same seniority status the
195	195	person would have had but for the discrimination; and
196	196	(2) not less than two times the amount of back pay,
197	197	interest on the back pay, and compensation for any special damages
198	198	sustained as a result of the discrimination, including litigation
199	199	costs and reasonable attorney's fees.
200	200	SECTION 8. Section 35A.02(a), Penal Code, is amended to
201	201	read as follows:
202	202	(a) A person commits an offense if the person:
203	203	(1) knowingly makes or causes to be made a false
204	204	statement or misrepresentation of a material fact to permit a
205	205	person to receive a benefit or payment under the Medicaid program
206	206	that is not authorized or that is greater than the benefit or
207	207	payment that is authorized;
208	208	(2) knowingly conceals or fails to disclose
209	209	information that permits a person to receive a benefit or payment
210	210	under the Medicaid program that is not authorized or that is greater
211	211	than the benefit or payment that is authorized;
212	212	(3) knowingly applies for and receives a benefit or
213	213	payment on behalf of another person under the Medicaid program and
214	214	converts any part of the benefit or payment to a use other than for
215	215	the benefit of the person on whose behalf it was received;
216	216	(4) knowingly makes, causes to be made, induces, or
217	217	seeks to induce the making of a false statement or
218	218	misrepresentation of material fact concerning:
219	219	(A) the conditions or operation of a facility in
220	220	order that the facility may qualify for certification or
221	221	recertification required by the Medicaid program, including
222	222	certification or recertification as:
223	223	(i) a hospital;
224	224	(ii) a nursing facility or skilled nursing
225	225	facility;
226	226	(iii) a hospice;
227	227	(iv) an intermediate care facility for the
228	228	mentally retarded;
229	229	(v) an assisted living facility; or
230	230	(vi) a home health agency; or
231	231	(B) information required to be provided by a
232	232	federal or state law, rule, regulation, or provider agreement
233	233	pertaining to the Medicaid program;
234	234	(5) except as authorized under the Medicaid program,
235	235	knowingly pays, charges, solicits, accepts, or receives, in
236	236	addition to an amount paid under the Medicaid program, a gift,
237	237	money, a donation, or other consideration as a condition to the
238	238	provision of a service or product or the continued provision of a
239	239	service or product if the cost of the service or product is paid
240	240	for, in whole or in part, under the Medicaid program;
241	241	(6) knowingly presents or causes to be presented a
242	242	claim for payment under the Medicaid program for a product provided
243	243	or a service rendered by a person who:
244	244	(A) is not licensed to provide the product or
245	245	render the service, if a license is required; or
246	246	(B) is not licensed in the manner claimed;
247	247	(7) knowingly makes or causes to be made a claim under
248	248	the Medicaid program for:
249	249	(A) a service or product that has not been
250	250	approved or acquiesced in by a treating physician or health care
251	251	practitioner;
252	252	(B) a service or product that is substantially
253	253	inadequate or inappropriate when compared to generally recognized
254	254	standards within the particular discipline or within the health
255	255	care industry; or
256	256	(C) a product that has been adulterated, debased,
257	257	mislabeled, or that is otherwise inappropriate;
258	258	(8) makes a claim under the Medicaid program and
259	259	knowingly fails to indicate the type of license and the
260	260	identification number of the licensed health care provider who
261	261	actually provided the service;
262	262	(9) knowingly enters into an agreement, combination,
263	263	or conspiracy to defraud the state by obtaining or aiding another
264	264	person in obtaining an unauthorized payment or benefit from the
265	265	Medicaid program or a fiscal agent;
266	266	(10) is a managed care organization that contracts
267	267	with the Health and Human Services Commission or other state agency
268	268	to provide or arrange to provide health care benefits or services to
269	269	individuals eligible under the Medicaid program and knowingly:
270	270	(A) fails to provide to an individual a health
271	271	care benefit or service that the organization is required to
272	272	provide under the contract;
273	273	(B) fails to provide to the commission or
274	274	appropriate state agency information required to be provided by
275	275	law, commission or agency rule, or contractual provision; or
276	276	(C) engages in a fraudulent activity in
277	277	connection with the enrollment of an individual eligible under the
278	278	Medicaid program in the organization's managed care plan or in
279	279	connection with marketing the organization's services to an
280	280	individual eligible under the Medicaid program;
281	281	(11) knowingly obstructs an investigation by the
282	282	attorney general of an alleged unlawful act under this section or
283	283	under Section 32.039, 32.0391, or 36.002, Human Resources Code; or
284	284	(12) knowingly makes, uses, or causes the making or
285	285	use of a false record or statement to conceal, avoid, or decrease an
286	286	obligation to pay or transmit money or property to this state under
287	287	the Medicaid program.
288	288	SECTION 9. (a) The changes in law made by this Act to
289	289	Section 36.002, Human Resources Code, and Section 35A.02, Penal
290	290	Code, apply only to conduct that occurs on or after the effective
291	291	date of this Act. Conduct that occurs before the effective date of
292	292	this Act is governed by the law in effect at the time the conduct
293	293	occurred, and that law is continued in effect for that purpose.
294	294	(b) For purposes of this section, conduct constituting an
295	295	offense under the penal law of this state occurred before the
296	296	effective date of this Act if any element of the offense occurred
297	297	before that date.
298	298	SECTION 10. The changes in law made by this Act to Sections
299	299	36.052, 36.110, and 36.113, Human Resources Code, apply only to a
300	300	civil action for a violation of Section 36.002, Human Resources
301	301	Code, as amended by this Act, commenced on or after the effective
302	302	date of this Act. A civil action commenced before the effective date
303	303	of this Act is governed by the law in effect immediately before the
304	304	effective date of this Act, and that law is continued in effect for
305	305	that purpose.
306	306	SECTION 11. This Act takes effect September 1, 2011.