Texas 2011 - 82nd Regular

Texas Senate Bill SB688 Compare Versions

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1	1	By: Nichols, Nelson S.B. No. 688
2	2	(Creighton, Gallego, Carter, Burkett, Coleman, et al.)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the investigation, prosecution, and punishment of
8	8	criminal Medicaid fraud and certain other offenses related to
9	9	Medicaid fraud; providing penalties.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Article 12.01, Code of Criminal Procedure, is
12	12	amended to read as follows:
13	13	Art. 12.01. FELONIES. Except as provided in Article 12.03,
14	14	felony indictments may be presented within these limits, and not
15	15	afterward:
16	16	(1) no limitation:
17	17	(A) murder and manslaughter;
18	18	(B) sexual assault under Section 22.011(a)(2),
19	19	Penal Code, or aggravated sexual assault under Section
20	20	22.021(a)(1)(B), Penal Code;
21	21	(C) sexual assault, if during the investigation
22	22	of the offense biological matter is collected and subjected to
23	23	forensic DNA testing and the testing results show that the matter
24	24	does not match the victim or any other person whose identity is
25	25	readily ascertained;
26	26	(D) continuous sexual abuse of young child or
27	27	children under Section 21.02, Penal Code;
28	28	(E) indecency with a child under Section 21.11,
29	29	Penal Code; or
30	30	(F) an offense involving leaving the scene of an
31	31	accident under Section 550.021, Transportation Code, if the
32	32	accident resulted in the death of a person;
33	33	(2) ten years from the date of the commission of the
34	34	offense:
35	35	(A) theft of any estate, real, personal or mixed,
36	36	by an executor, administrator, guardian or trustee, with intent to
37	37	defraud any creditor, heir, legatee, ward, distributee,
38	38	beneficiary or settlor of a trust interested in such estate;
39	39	(B) theft by a public servant of government
40	40	property over which he exercises control in his official capacity;
41	41	(C) forgery or the uttering, using or passing of
42	42	forged instruments;
43	43	(D) injury to an elderly or disabled individual
44	44	punishable as a felony of the first degree under Section 22.04,
45	45	Penal Code;
46	46	(E) sexual assault, except as provided by
47	47	Subdivision (1); or
48	48	(F) arson;
49	49	(3) seven years from the date of the commission of the
50	50	offense:
51	51	(A) misapplication of fiduciary property or
52	52	property of a financial institution;
53	53	(B) securing execution of document by deception;
54	54	(C) a felony violation under Chapter 162, Tax
55	55	Code;
56	56	(D) false statement to obtain property or credit
57	57	under Section 32.32, Penal Code;
58	58	(E) money laundering;
59	59	(F) credit card or debit card abuse under Section
60	60	32.31, Penal Code; [or]
61	61	(G) fraudulent use or possession of identifying
62	62	information under Section 32.51, Penal Code; or
63	63	(H) Medicaid fraud under Section 35A.02, Penal
64	64	Code;
65	65	(4) five years from the date of the commission of the
66	66	offense:
67	67	(A) theft or robbery;
68	68	(B) except as provided by Subdivision (5),
69	69	kidnapping or burglary;
70	70	(C) injury to an elderly or disabled individual
71	71	that is not punishable as a felony of the first degree under Section
72	72	22.04, Penal Code;
73	73	(D) abandoning or endangering a child; or
74	74	(E) insurance fraud;
75	75	(5) if the investigation of the offense shows that the
76	76	victim is younger than 17 years of age at the time the offense is
77	77	committed, 20 years from the 18th birthday of the victim of one of
78	78	the following offenses:
79	79	(A) sexual performance by a child under Section
80	80	43.25, Penal Code;
81	81	(B) aggravated kidnapping under Section
82	82	20.04(a)(4), Penal Code, if the defendant committed the offense
83	83	with the intent to violate or abuse the victim sexually; or
84	84	(C) burglary under Section 30.02, Penal Code, if
85	85	the offense is punishable under Subsection (d) of that section and
86	86	the defendant committed the offense with the intent to commit an
87	87	offense described by Subdivision (1)(B) or (D) of this article or
88	88	Paragraph (B) of this subdivision;
89	89	(6) ten years from the 18th birthday of the victim of
90	90	the offense: injury to a child under Section 22.04, Penal Code; or
91	91	(7) three years from the date of the commission of the
92	92	offense: all other felonies.
93	93	SECTION 2. Subdivision (2), Section 1, Article 18.21, Code
94	94	of Criminal Procedure, is amended to read as follows:
95	95	(2) "Authorized peace officer" means:
96	96	(A) a sheriff or a sheriff's deputy;
97	97	(B) a constable or deputy constable;
98	98	(C) a marshal or police officer of an
99	99	incorporated city;
100	100	(D) a ranger or officer commissioned by the
101	101	Public Safety Commission or the director of the Department of
102	102	Public Safety;
103	103	(E) an investigator of a prosecutor's office;
104	104	(F) a law enforcement agent of the Alcoholic
105	105	Beverage Commission;
106	106	(G) a law enforcement officer commissioned by the
107	107	Parks and Wildlife Commission; [or]
108	108	(H) an enforcement officer appointed by the
109	109	executive director of the Texas Department of Criminal Justice
110	110	under Section 493.019, Government Code; or
111	111	(I) an investigator commissioned by the attorney
112	112	general under Section 402.009, Government Code.
113	113	SECTION 3. Subsection (a), Section 3, Article 37.07, Code
114	114	of Criminal Procedure, is amended by adding Subdivision (3) to read
115	115	as follows:
116	116	(3) Regardless of the plea and whether the punishment
117	117	is assessed by the judge or the jury, during the punishment phase of
118	118	the trial of an offense under Section 35A.02, Penal Code, subject to
119	119	the applicable rules of evidence the state and the defendant may
120	120	offer evidence not offered during the guilt or innocence phase of
121	121	the trial concerning the total pecuniary loss to the Medicaid
122	122	program caused by the defendant's conduct or, if applicable, the
123	123	scheme or continuing course of conduct of which the defendant's
124	124	conduct is part. Subject to the applicable rules of evidence, an
125	125	employee of the Health and Human Services Commission's office of
126	126	inspector general or the office of attorney general's Medicaid
127	127	fraud control unit may testify concerning the total pecuniary loss
128	128	to the Medicaid program. An employee who testifies under this
129	129	subdivision is subject to cross-examination. Evidence offered
130	130	under this subdivision may be considered by the judge or jury in
131	131	ordering or recommending the amount of any restitution to be made to
132	132	the Medicaid program or the appropriate punishment for the
133	133	defendant.
134	134	SECTION 4. Subsection (g), Section 531.1021, Government
135	135	Code, is amended to read as follows:
136	136	(g) All information and materials subpoenaed or compiled by
137	137	the office in connection with an audit or investigation or by the
138	138	office of the attorney general in connection with a Medicaid fraud
139	139	investigation are confidential and not subject to disclosure under
140	140	Chapter 552, and not subject to disclosure, discovery, subpoena, or
141	141	other means of legal compulsion for their release to anyone other
142	142	than the office or the attorney general or their [its] employees or
143	143	agents involved in the audit or investigation conducted by the
144	144	office or the attorney general, except that this information may be
145	145	disclosed to [the office of the attorney general,] the state
146	146	auditor's office, [and] law enforcement agencies, and other
147	147	entities as permitted by other law.
148	148	SECTION 5. Subsections (a-1), (b), (d), (f), and (g),
149	149	Section 22.04, Penal Code, are amended to read as follows:
150	150	(a-1) A person commits an offense if the person is an owner,
151	151	operator, or employee of a group home, nursing facility, assisted
152	152	living facility, intermediate care facility for persons with mental
153	153	retardation, or other institutional care facility and the person
154	154	intentionally, knowingly, recklessly, or with criminal negligence
155	155	by omission causes to a child, elderly individual, or disabled
156	156	individual who is a resident of that group home or facility:
157	157	(1) serious bodily injury;
158	158	(2) serious mental deficiency, impairment, or injury;
159	159	or
160	160	(3) bodily injury[; or
161	161	[(4) exploitation].
162	162	(b) An omission that causes a condition described by
163	163	Subsection (a)(1), (2), or (3) or (a-1)(1), (2), or (3)[, or (4)] is
164	164	conduct constituting an offense under this section if:
165	165	(1) the actor has a legal or statutory duty to act; or
166	166	(2) the actor has assumed care, custody, or control of
167	167	a child, elderly individual, or disabled individual.
168	168	(d) For purposes of an omission that causes a condition
169	169	described by Subsection (a)(1), (2), or (3), the actor has assumed
170	170	care, custody, or control if he has by act, words, or course of
171	171	conduct acted so as to cause a reasonable person to conclude that he
172	172	has accepted responsibility for protection, food, shelter, and
173	173	medical care for a child, elderly individual, or disabled
174	174	individual. For purposes of an omission that causes a condition
175	175	described by Subsection (a-1)(1), (2), or (3), [or (4),] the actor
176	176	acting during the actor's capacity as owner, operator, or employee
177	177	of a group home or facility described by Subsection (a-1) is
178	178	considered to have accepted responsibility for protection, food,
179	179	shelter, and medical care for the child, elderly individual, or
180	180	disabled individual who is a resident of the group home or facility.
181	181	(f) An offense under Subsection (a)(3) or (a-1)(3) [or (4)]
182	182	is a felony of the third degree when the conduct is committed
183	183	intentionally or knowingly, except that an offense under Subsection
184	184	(a)(3) is a felony of the second degree when the conduct is
185	185	committed intentionally or knowingly and the victim is a disabled
186	186	individual residing in a center, as defined by Section 555.001,
187	187	Health and Safety Code, or in a facility licensed under Chapter 252,
188	188	Health and Safety Code, and the actor is an employee of the center
189	189	or facility whose employment involved providing direct care for the
190	190	victim. When the conduct is engaged in recklessly, the offense is a
191	191	state jail felony.
192	192	(g) An offense under Subsection (a) is a state jail felony
193	193	when the person acts with criminal negligence. An offense under
194	194	Subsection (a-1) is a state jail felony when the person, with
195	195	criminal negligence and by omission, causes a condition described
196	196	by Subsection (a-1)(1), (2), or (3)[, or (4)].
197	197	SECTION 6. Subsection (d), Section 32.46, Penal Code, is
198	198	amended to read as follows:
199	199	(d) In this section:
200	200	(1) "Deception"[, "deception"] has the meaning
201	201	assigned by Section 31.01.
202	202	(2) "Document" includes electronically stored data or
203	203	other information that is retrievable in a readable, perceivable
204	204	form.
205	205	SECTION 7. Subchapter D, Chapter 32, Penal Code, is amended
206	206	by adding Section 32.53 to read as follows:
207	207	Sec. 32.53. EXPLOITATION OF CHILD, ELDERLY INDIVIDUAL, OR
208	208	DISABLED INDIVIDUAL. (a) In this section:
209	209	(1) "Child," "elderly individual," and "disabled
210	210	individual" have the meanings assigned by Section 22.04.
211	211	(2) "Exploitation" means the illegal or improper use
212	212	of a child, elderly individual, or disabled individual or of the
213	213	resources of a child, elderly individual, or disabled individual
214	214	for monetary or personal benefit, profit, or gain.
215	215	(b) A person commits an offense if the person intentionally,
216	216	knowingly, or recklessly causes the exploitation of a child,
217	217	elderly individual, or disabled individual.
218	218	(c) An offense under this section is a felony of the third
219	219	degree.
220	220	(d) A person who is subject to prosecution under both this
221	221	section and another section of this code may be prosecuted under
222	222	either or both sections. Section 3.04 does not apply to criminal
223	223	episodes prosecuted under both this section and another section of
224	224	this code. If a criminal episode is prosecuted under both this
225	225	section and another section of this code and sentences are assessed
226	226	for convictions under both sections, the sentences shall run
227	227	concurrently.
228	228	(e) With the consent of the appropriate local county or
229	229	district attorney, the attorney general has concurrent
230	230	jurisdiction with that consenting local prosecutor to prosecute an
231	231	offense under this section that involves the Medicaid program.
232	232	SECTION 8. Section 35A.01, Penal Code, is amended by adding
233	233	Subdivision (10) to read as follows:
234	234	(10) "High managerial agent" means a director,
235	235	officer, or employee who is authorized to act on behalf of a
236	236	provider and has duties of such responsibility that the conduct of
237	237	the director, officer, or employee reasonably may be assumed to
238	238	represent the policy or intent of the provider.
239	239	SECTION 9. Section 35A.02, Penal Code, is amended by
240	240	amending Subsections (b) and (c) and adding Subsections (e) and (f)
241	241	to read as follows:
242	242	(b) An offense under this section is:
243	243	(1) a Class C misdemeanor if the amount of any payment
244	244	or the value of any monetary or in-kind benefit provided or claim
245	245	for payment made under the Medicaid program, directly or
246	246	indirectly, as a result of the conduct is less than $50;
247	247	(2) a Class B misdemeanor if the amount of any payment
248	248	or the value of any monetary or in-kind benefit provided or claim
249	249	for payment made under the Medicaid program, directly or
250	250	indirectly, as a result of the conduct is $50 or more but less than
251	251	$500;
252	252	(3) a Class A misdemeanor if the amount of any payment
253	253	or the value of any monetary or in-kind benefit provided or claim
254	254	for payment made under the Medicaid program, directly or
255	255	indirectly, as a result of the conduct is $500 or more but less than
256	256	$1,500;
257	257	(4) a state jail felony if:
258	258	(A) the amount of any payment or the value of any
259	259	monetary or in-kind benefit provided or claim for payment made
260	260	under the Medicaid program, directly or indirectly, as a result of
261	261	the conduct is $1,500 or more but less than $20,000;
262	262	(B) the offense is committed under Subsection
263	263	(a)(11); or
264	264	(C) it is shown on the trial of the offense that
265	265	the amount of the payment or value of the benefit described by this
266	266	subsection cannot be reasonably ascertained;
267	267	(5) a felony of the third degree if:
268	268	(A) the amount of any payment or the value of any
269	269	monetary or in-kind benefit provided or claim for payment made
270	270	under the Medicaid program, directly or indirectly, as a result of
271	271	the conduct is $20,000 or more but less than $100,000; or
272	272	(B) it is shown on the trial of the offense that
273	273	the defendant submitted more than 25 but fewer than 50 fraudulent
274	274	claims under the Medicaid program and the submission of each claim
275	275	constitutes conduct prohibited by Subsection (a);
276	276	(6) a felony of the second degree if:
277	277	(A) the amount of any payment or the value of any
278	278	monetary or in-kind benefit provided or claim for payment made
279	279	under the Medicaid program, directly or indirectly, as a result of
280	280	the conduct is $100,000 or more but less than $200,000; or
281	281	(B) it is shown on the trial of the offense that
282	282	the defendant submitted 50 or more fraudulent claims under the
283	283	Medicaid program and the submission of each claim constitutes
284	284	conduct prohibited by Subsection (a); or
285	285	(7) a felony of the first degree if the amount of any
286	286	payment or the value of any monetary or in-kind benefit provided or
287	287	claim for payment made under the Medicaid program, directly or
288	288	indirectly, as a result of the conduct is $200,000 or more.
289	289	(c) If conduct constituting an offense under this section
290	290	also constitutes an offense under another section of this code or
291	291	another provision of law, the actor may be prosecuted under either
292	292	this section or the other section or provision or both this section
293	293	and the other section or provision.
294	294	(e) The punishment prescribed for an offense under this
295	295	section, other than the punishment prescribed by Subsection (b)(7),
296	296	is increased to the punishment prescribed for the next highest
297	297	category of offense if it is shown beyond a reasonable doubt on the
298	298	trial of the offense that the actor was a provider or high
299	299	managerial agent at the time of the offense.
300	300	(f) With the consent of the appropriate local county or
301	301	district attorney, the attorney general has concurrent
302	302	jurisdiction with that consenting local prosecutor to prosecute an
303	303	offense under this section that involves the Medicaid program.
304	304	SECTION 10. Subsection (a), Section 71.02, Penal Code, as
305	305	amended by Chapters 153 (S.B. 2225), 1130 (H.B. 2086), and 1357
306	306	(S.B. 554), Acts of the 81st Legislature, Regular Session, 2009, is
307	307	reenacted and amended to read as follows:
308	308	(a) A person commits an offense if, with the intent to
309	309	establish, maintain, or participate in a combination or in the
310	310	profits of a combination or as a member of a criminal street gang,
311	311	the person commits or conspires to commit one or more of the
312	312	following:
313	313	(1) murder, capital murder, arson, aggravated
314	314	robbery, robbery, burglary, theft, aggravated kidnapping,
315	315	kidnapping, aggravated assault, aggravated sexual assault, sexual
316	316	assault, forgery, deadly conduct, assault punishable as a Class A
317	317	misdemeanor, burglary of a motor vehicle, or unauthorized use of a
318	318	motor vehicle;
319	319	(2) any gambling offense punishable as a Class A
320	320	misdemeanor;
321	321	(3) promotion of prostitution, aggravated promotion
322	322	of prostitution, or compelling prostitution;
323	323	(4) unlawful manufacture, transportation, repair, or
324	324	sale of firearms or prohibited weapons;
325	325	(5) unlawful manufacture, delivery, dispensation, or
326	326	distribution of a controlled substance or dangerous drug, or
327	327	unlawful possession of a controlled substance or dangerous drug
328	328	through forgery, fraud, misrepresentation, or deception;
329	329	(6) any unlawful wholesale promotion or possession of
330	330	any obscene material or obscene device with the intent to wholesale
331	331	promote the same;
332	332	(7) any offense under Subchapter B, Chapter 43,
333	333	depicting or involving conduct by or directed toward a child
334	334	younger than 18 years of age;
335	335	(8) any felony offense under Chapter 32;
336	336	(9) any offense under Chapter 36;
337	337	(10) any offense under Chapter 34, [or] 35, or 35A;
338	338	(11) any offense under Section 37.11(a);
339	339	(12) any offense under Chapter 20A;
340	340	(13) any offense under Section 37.10; [or]
341	341	(14) any offense under Section 38.06, 38.07, 38.09, or
342	342	38.11;
343	343	(15) [(14)] any offense under Section 42.10; or
344	344	(16) [(14)] any offense under Section 46.06(a)(1) or
345	345	46.14.
346	346	SECTION 11. Subdivision (4), Subsection (c), Section 22.04,
347	347	Penal Code, is repealed.
348	348	SECTION 12. (a) The changes in law made by this Act to
349	349	Article 37.07, Code of Criminal Procedure, and Sections 22.04,
350	350	32.46, 35A.01, 35A.02, and 71.02, Penal Code, apply only to an
351	351	offense committed on or after the effective date of this Act. An
352	352	offense committed before the effective date of this Act is covered
353	353	by the law in effect when the offense was committed, and the former
354	354	law is continued in effect for that purpose. For purposes of this
355	355	section, an offense was committed before the effective date of this
356	356	Act if any element of the offense occurred before that date.
357	357	(b) The change in law made by this Act in amending Article
358	358	12.01, Code of Criminal Procedure, does not apply to an offense if
359	359	the prosecution of that offense becomes barred by limitation before
360	360	the effective date of this Act. The prosecution of that offense
361	361	remains barred as if this Act had not taken effect.
362	362	SECTION 13. This Act takes effect September 1, 2011.