By: Nichols, Nelson S.B. No. 688
(Creighton, Gallego, Carter, Burkett, Coleman, et al.)
A BILL TO BE ENTITLED
AN ACT
relating to the investigation, prosecution, and punishment of
criminal Medicaid fraud and certain other offenses related to
Medicaid fraud; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 12.01, Code of Criminal Procedure, is
amended to read as follows:
Art. 12.01. FELONIES. Except as provided in Article 12.03,
felony indictments may be presented within these limits, and not
afterward:
(1) no limitation:
(A) murder and manslaughter;
(B) sexual assault under Section 22.011(a)(2),
Penal Code, or aggravated sexual assault under Section
22.021(a)(1)(B), Penal Code;
(C) sexual assault, if during the investigation
of the offense biological matter is collected and subjected to
forensic DNA testing and the testing results show that the matter
does not match the victim or any other person whose identity is
readily ascertained;
(D) continuous sexual abuse of young child or
children under Section 21.02, Penal Code;
(E) indecency with a child under Section 21.11,
Penal Code; or
(F) an offense involving leaving the scene of an
accident under Section 550.021, Transportation Code, if the
accident resulted in the death of a person;
(2) ten years from the date of the commission of the
offense:
(A) theft of any estate, real, personal or mixed,
by an executor, administrator, guardian or trustee, with intent to
defraud any creditor, heir, legatee, ward, distributee,
beneficiary or settlor of a trust interested in such estate;
(B) theft by a public servant of government
property over which he exercises control in his official capacity;
(C) forgery or the uttering, using or passing of
forged instruments;
(D) injury to an elderly or disabled individual
punishable as a felony of the first degree under Section 22.04,
Penal Code;
(E) sexual assault, except as provided by
Subdivision (1); or
(F) arson;
(3) seven years from the date of the commission of the
offense:
(A) misapplication of fiduciary property or
property of a financial institution;
(B) securing execution of document by deception;
(C) a felony violation under Chapter 162, Tax
Code;
(D) false statement to obtain property or credit
under Section 32.32, Penal Code;
(E) money laundering;
(F) credit card or debit card abuse under Section
32.31, Penal Code; [or]
(G) fraudulent use or possession of identifying
information under Section 32.51, Penal Code; or
(H) Medicaid fraud under Section 35A.02, Penal
Code;
(4) five years from the date of the commission of the
offense:
(A) theft or robbery;
(B) except as provided by Subdivision (5),
kidnapping or burglary;
(C) injury to an elderly or disabled individual
that is not punishable as a felony of the first degree under Section
22.04, Penal Code;
(D) abandoning or endangering a child; or
(E) insurance fraud;
(5) if the investigation of the offense shows that the
victim is younger than 17 years of age at the time the offense is
committed, 20 years from the 18th birthday of the victim of one of
the following offenses:
(A) sexual performance by a child under Section
43.25, Penal Code;
(B) aggravated kidnapping under Section
20.04(a)(4), Penal Code, if the defendant committed the offense
with the intent to violate or abuse the victim sexually; or
(C) burglary under Section 30.02, Penal Code, if
the offense is punishable under Subsection (d) of that section and
the defendant committed the offense with the intent to commit an
offense described by Subdivision (1)(B) or (D) of this article or
Paragraph (B) of this subdivision;
(6) ten years from the 18th birthday of the victim of
the offense: injury to a child under Section 22.04, Penal Code; or
(7) three years from the date of the commission of the
offense: all other felonies.
SECTION 2. Subdivision (2), Section 1, Article 18.21, Code
of Criminal Procedure, is amended to read as follows:
(2) "Authorized peace officer" means:
(A) a sheriff or a sheriff's deputy;
(B) a constable or deputy constable;
(C) a marshal or police officer of an
incorporated city;
(D) a ranger or officer commissioned by the
Public Safety Commission or the director of the Department of
Public Safety;
(E) an investigator of a prosecutor's office;
(F) a law enforcement agent of the Alcoholic
Beverage Commission;
(G) a law enforcement officer commissioned by the
Parks and Wildlife Commission; [or]
(H) an enforcement officer appointed by the
executive director of the Texas Department of Criminal Justice
under Section 493.019, Government Code; or
(I) an investigator commissioned by the attorney
general under Section 402.009, Government Code.
SECTION 3. Subsection (a), Section 3, Article 37.07, Code
of Criminal Procedure, is amended by adding Subdivision (3) to read
as follows:
(3) Regardless of the plea and whether the punishment
is assessed by the judge or the jury, during the punishment phase of
the trial of an offense under Section 35A.02, Penal Code, subject to
the applicable rules of evidence the state and the defendant may
offer evidence not offered during the guilt or innocence phase of
the trial concerning the total pecuniary loss to the Medicaid
program caused by the defendant's conduct or, if applicable, the
scheme or continuing course of conduct of which the defendant's
conduct is part. Subject to the applicable rules of evidence, an
employee of the Health and Human Services Commission's office of
inspector general or the office of attorney general's Medicaid
fraud control unit may testify concerning the total pecuniary loss
to the Medicaid program. An employee who testifies under this
subdivision is subject to cross-examination. Evidence offered
under this subdivision may be considered by the judge or jury in
ordering or recommending the amount of any restitution to be made to
the Medicaid program or the appropriate punishment for the
defendant.
SECTION 4. Subsection (g), Section 531.1021, Government
Code, is amended to read as follows:
(g) All information and materials subpoenaed or compiled by
the office in connection with an audit or investigation or by the
office of the attorney general in connection with a Medicaid fraud
investigation are confidential and not subject to disclosure under
Chapter 552, and not subject to disclosure, discovery, subpoena, or
other means of legal compulsion for their release to anyone other
than the office or the attorney general or their [its] employees or
agents involved in the audit or investigation conducted by the
office or the attorney general, except that this information may be
disclosed to [the office of the attorney general,] the state
auditor's office, [and] law enforcement agencies, and other
entities as permitted by other law.
SECTION 5. Subsections (a-1), (b), (d), (f), and (g),
Section 22.04, Penal Code, are amended to read as follows:
(a-1) A person commits an offense if the person is an owner,
operator, or employee of a group home, nursing facility, assisted
living facility, intermediate care facility for persons with mental
retardation, or other institutional care facility and the person
intentionally, knowingly, recklessly, or with criminal negligence
by omission causes to a child, elderly individual, or disabled
individual who is a resident of that group home or facility:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury;
or
(3) bodily injury[; or
[(4) exploitation].
(b) An omission that causes a condition described by
Subsection (a)(1), (2), or (3) or (a-1)(1), (2), or (3)[, or (4)] is
conduct constituting an offense under this section if:
(1) the actor has a legal or statutory duty to act; or
(2) the actor has assumed care, custody, or control of
a child, elderly individual, or disabled individual.
(d) For purposes of an omission that causes a condition
described by Subsection (a)(1), (2), or (3), the actor has assumed
care, custody, or control if he has by act, words, or course of
conduct acted so as to cause a reasonable person to conclude that he
has accepted responsibility for protection, food, shelter, and
medical care for a child, elderly individual, or disabled
individual. For purposes of an omission that causes a condition
described by Subsection (a-1)(1), (2), or (3), [or (4),] the actor
acting during the actor's capacity as owner, operator, or employee
of a group home or facility described by Subsection (a-1) is
considered to have accepted responsibility for protection, food,
shelter, and medical care for the child, elderly individual, or
disabled individual who is a resident of the group home or facility.
(f) An offense under Subsection (a)(3) or (a-1)(3) [or (4)]
is a felony of the third degree when the conduct is committed
intentionally or knowingly, except that an offense under Subsection
(a)(3) is a felony of the second degree when the conduct is
committed intentionally or knowingly and the victim is a disabled
individual residing in a center, as defined by Section 555.001,
Health and Safety Code, or in a facility licensed under Chapter 252,
Health and Safety Code, and the actor is an employee of the center
or facility whose employment involved providing direct care for the
victim. When the conduct is engaged in recklessly, the offense is a
state jail felony.
(g) An offense under Subsection (a) is a state jail felony
when the person acts with criminal negligence. An offense under
Subsection (a-1) is a state jail felony when the person, with
criminal negligence and by omission, causes a condition described
by Subsection (a-1)(1), (2), or (3)[, or (4)].
SECTION 6. Subsection (d), Section 32.46, Penal Code, is
amended to read as follows:
(d) In this section:
(1) "Deception"[, "deception"] has the meaning
assigned by Section 31.01.
(2) "Document" includes electronically stored data or
other information that is retrievable in a readable, perceivable
form.
SECTION 7. Subchapter D, Chapter 32, Penal Code, is amended
by adding Section 32.53 to read as follows:
Sec. 32.53. EXPLOITATION OF CHILD, ELDERLY INDIVIDUAL, OR
DISABLED INDIVIDUAL. (a) In this section:
(1) "Child," "elderly individual," and "disabled
individual" have the meanings assigned by Section 22.04.
(2) "Exploitation" means the illegal or improper use
of a child, elderly individual, or disabled individual or of the
resources of a child, elderly individual, or disabled individual
for monetary or personal benefit, profit, or gain.
(b) A person commits an offense if the person intentionally,
knowingly, or recklessly causes the exploitation of a child,
elderly individual, or disabled individual.
(c) An offense under this section is a felony of the third
degree.
(d) A person who is subject to prosecution under both this
section and another section of this code may be prosecuted under
either or both sections. Section 3.04 does not apply to criminal
episodes prosecuted under both this section and another section of
this code. If a criminal episode is prosecuted under both this
section and another section of this code and sentences are assessed
for convictions under both sections, the sentences shall run
concurrently.
(e) With the consent of the appropriate local county or
district attorney, the attorney general has concurrent
jurisdiction with that consenting local prosecutor to prosecute an
offense under this section that involves the Medicaid program.
SECTION 8. Section 35A.01, Penal Code, is amended by adding
Subdivision (10) to read as follows:
(10) "High managerial agent" means a director,
officer, or employee who is authorized to act on behalf of a
provider and has duties of such responsibility that the conduct of
the director, officer, or employee reasonably may be assumed to
represent the policy or intent of the provider.
SECTION 9. Section 35A.02, Penal Code, is amended by
amending Subsections (b) and (c) and adding Subsections (e) and (f)
to read as follows:
(b) An offense under this section is:
(1) a Class C misdemeanor if the amount of any payment
or the value of any monetary or in-kind benefit provided or claim
for payment made under the Medicaid program, directly or
indirectly, as a result of the conduct is less than $50;
(2) a Class B misdemeanor if the amount of any payment
or the value of any monetary or in-kind benefit provided or claim
for payment made under the Medicaid program, directly or
indirectly, as a result of the conduct is $50 or more but less than
$500;
(3) a Class A misdemeanor if the amount of any payment
or the value of any monetary or in-kind benefit provided or claim
for payment made under the Medicaid program, directly or
indirectly, as a result of the conduct is $500 or more but less than
$1,500;
(4) a state jail felony if:
(A) the amount of any payment or the value of any
monetary or in-kind benefit provided or claim for payment made
under the Medicaid program, directly or indirectly, as a result of
the conduct is $1,500 or more but less than $20,000;
(B) the offense is committed under Subsection
(a)(11); or
(C) it is shown on the trial of the offense that
the amount of the payment or value of the benefit described by this
subsection cannot be reasonably ascertained;
(5) a felony of the third degree if:
(A) the amount of any payment or the value of any
monetary or in-kind benefit provided or claim for payment made
under the Medicaid program, directly or indirectly, as a result of
the conduct is $20,000 or more but less than $100,000; or
(B) it is shown on the trial of the offense that
the defendant submitted more than 25 but fewer than 50 fraudulent
claims under the Medicaid program and the submission of each claim
constitutes conduct prohibited by Subsection (a);
(6) a felony of the second degree if:
(A) the amount of any payment or the value of any
monetary or in-kind benefit provided or claim for payment made
under the Medicaid program, directly or indirectly, as a result of
the conduct is $100,000 or more but less than $200,000; or
(B) it is shown on the trial of the offense that
the defendant submitted 50 or more fraudulent claims under the
Medicaid program and the submission of each claim constitutes
conduct prohibited by Subsection (a); or
(7) a felony of the first degree if the amount of any
payment or the value of any monetary or in-kind benefit provided or
claim for payment made under the Medicaid program, directly or
indirectly, as a result of the conduct is $200,000 or more.
(c) If conduct constituting an offense under this section
also constitutes an offense under another section of this code or
another provision of law, the actor may be prosecuted under either
this section or the other section or provision or both this section
and the other section or provision.
(e) The punishment prescribed for an offense under this
section, other than the punishment prescribed by Subsection (b)(7),
is increased to the punishment prescribed for the next highest
category of offense if it is shown beyond a reasonable doubt on the
trial of the offense that the actor was a provider or high
managerial agent at the time of the offense.
(f) With the consent of the appropriate local county or
district attorney, the attorney general has concurrent
jurisdiction with that consenting local prosecutor to prosecute an
offense under this section that involves the Medicaid program.
SECTION 10. Subsection (a), Section 71.02, Penal Code, as
amended by Chapters 153 (S.B. 2225), 1130 (H.B. 2086), and 1357
(S.B. 554), Acts of the 81st Legislature, Regular Session, 2009, is
reenacted and amended to read as follows:
(a) A person commits an offense if, with the intent to
establish, maintain, or participate in a combination or in the
profits of a combination or as a member of a criminal street gang,
the person commits or conspires to commit one or more of the
following:
(1) murder, capital murder, arson, aggravated
robbery, robbery, burglary, theft, aggravated kidnapping,
kidnapping, aggravated assault, aggravated sexual assault, sexual
assault, forgery, deadly conduct, assault punishable as a Class A
misdemeanor, burglary of a motor vehicle, or unauthorized use of a
motor vehicle;
(2) any gambling offense punishable as a Class A
misdemeanor;
(3) promotion of prostitution, aggravated promotion
of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or
sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or
distribution of a controlled substance or dangerous drug, or
unlawful possession of a controlled substance or dangerous drug
through forgery, fraud, misrepresentation, or deception;
(6) any unlawful wholesale promotion or possession of
any obscene material or obscene device with the intent to wholesale
promote the same;
(7) any offense under Subchapter B, Chapter 43,
depicting or involving conduct by or directed toward a child
younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34, [or] 35, or 35A;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A;
(13) any offense under Section 37.10; [or]
(14) any offense under Section 38.06, 38.07, 38.09, or
38.11;
(15) [(14)] any offense under Section 42.10; or
(16) [(14)] any offense under Section 46.06(a)(1) or
46.14.
SECTION 11. Subdivision (4), Subsection (c), Section 22.04,
Penal Code, is repealed.
SECTION 12. (a) The changes in law made by this Act to
Article 37.07, Code of Criminal Procedure, and Sections 22.04,
32.46, 35A.01, 35A.02, and 71.02, Penal Code, apply only to an
offense committed on or after the effective date of this Act. An
offense committed before the effective date of this Act is covered
by the law in effect when the offense was committed, and the former
law is continued in effect for that purpose. For purposes of this
section, an offense was committed before the effective date of this
Act if any element of the offense occurred before that date.
(b) The change in law made by this Act in amending Article
12.01, Code of Criminal Procedure, does not apply to an offense if
the prosecution of that offense becomes barred by limitation before
the effective date of this Act. The prosecution of that offense
remains barred as if this Act had not taken effect.
SECTION 13. This Act takes effect September 1, 2011.