By: Nelson, et al. S.B. No. 746
(Kolkhorst)
A BILL TO BE ENTITLED
AN ACT
relating to unlawful acts against and criminal offenses involving
the Medicaid program.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 36.002, Human Resources Code, is amended
to read as follows:
Sec. 36.002. UNLAWFUL ACTS. A person commits an unlawful
act if the person:
(1) knowingly makes or causes to be made a false
statement or misrepresentation of a material fact to permit a
person to receive a benefit or payment under the Medicaid program
that is not authorized or that is greater than the benefit or
payment that is authorized;
(2) knowingly conceals or fails to disclose
information that permits a person to receive a benefit or payment
under the Medicaid program that is not authorized or that is greater
than the benefit or payment that is authorized;
(3) knowingly applies for and receives a benefit or
payment on behalf of another person under the Medicaid program and
converts any part of the benefit or payment to a use other than for
the benefit of the person on whose behalf it was received;
(4) knowingly makes, causes to be made, induces, or
seeks to induce the making of a false statement or
misrepresentation of material fact concerning:
(A) the conditions or operation of a facility in
order that the facility may qualify for certification or
recertification required by the Medicaid program, including
certification or recertification as:
(i) a hospital;
(ii) a nursing facility or skilled nursing
facility;
(iii) a hospice;
(iv) an intermediate care facility for the
mentally retarded;
(v) an assisted living facility; or
(vi) a home health agency; or
(B) information required to be provided by a
federal or state law, rule, regulation, or provider agreement
pertaining to the Medicaid program;
(5) except as authorized under the Medicaid program,
knowingly pays, charges, solicits, accepts, or receives, in
addition to an amount paid under the Medicaid program, a gift,
money, a donation, or other consideration as a condition to the
provision of a service or product or the continued provision of a
service or product if the cost of the service or product is paid
for, in whole or in part, under the Medicaid program;
(6) knowingly presents or causes to be presented a
claim for payment under the Medicaid program for a product provided
or a service rendered by a person who:
(A) is not licensed to provide the product or
render the service, if a license is required; or
(B) is not licensed in the manner claimed;
(7) knowingly makes or causes to be made a claim under
the Medicaid program for:
(A) a service or product that has not been
approved or acquiesced in by a treating physician or health care
practitioner;
(B) a service or product that is substantially
inadequate or inappropriate when compared to generally recognized
standards within the particular discipline or within the health
care industry; or
(C) a product that has been adulterated, debased,
mislabeled, or that is otherwise inappropriate;
(8) makes a claim under the Medicaid program and
knowingly fails to indicate the type of license and the
identification number of the licensed health care provider who
actually provided the service;
(9) conspires to commit a violation of Subdivision
(1), (2), (3), (4), (5), (6), (7), (8), (10), (11), (12), or (13)
[knowingly enters into an agreement, combination, or conspiracy to
defraud the state by obtaining or aiding another person in
obtaining an unauthorized payment or benefit from the Medicaid
program or a fiscal agent];
(10) is a managed care organization that contracts
with the Health and Human Services Commission or other state agency
to provide or arrange to provide health care benefits or services to
individuals eligible under the Medicaid program and knowingly:
(A) fails to provide to an individual a health
care benefit or service that the organization is required to
provide under the contract;
(B) fails to provide to the commission or
appropriate state agency information required to be provided by
law, commission or agency rule, or contractual provision; or
(C) engages in a fraudulent activity in
connection with the enrollment of an individual eligible under the
Medicaid program in the organization's managed care plan or in
connection with marketing the organization's services to an
individual eligible under the Medicaid program;
(11) knowingly obstructs an investigation by the
attorney general of an alleged unlawful act under this section;
(12) knowingly makes, uses, or causes the making or
use of a false record or statement material to [conceal, avoid, or
decrease] an obligation to pay or transmit money or property to this
state under the Medicaid program, or knowingly conceals or
knowingly and improperly avoids or decreases an obligation to pay
or transmit money or property to this state under the Medicaid
program; or
(13) knowingly engages in conduct that constitutes a
violation under Section 32.039(b).
SECTION 2. Section 36.104, Human Resources Code, is amended
by amending Subsection (b) and adding Subsection (b-1) to read as
follows:
(b) If the state declines to take over the action, the
person bringing the action may proceed without the state's
participation. A person proceeding under this subsection may
recover for an unlawful act for a period of up to six years before
the date the lawsuit was filed, or for a period beginning when the
unlawful act occurred until up to three years from the date the
state knows or reasonably should have known facts material to the
unlawful act, whichever of these two periods is longer, regardless
of whether the unlawful act occurred more than six years before the
date the lawsuit was filed. Notwithstanding the preceding
sentence, in no event shall a person proceeding under this
subsection recover for an unlawful act that occurred more than 10
years before the date the lawsuit was filed.
(b-1) On request by the state, the state is entitled to be
served with copies of all pleadings filed in the action and be
provided at the state's expense with copies of all deposition
transcripts. If the person bringing the action proceeds without
the state's participation, the court, without limiting the status
and right of that person, may permit the state to intervene at a
later date on a showing of good cause.
SECTION 3. Subsections (b) and (c), Section 36.110, Human
Resources Code, are amended to read as follows:
(b) If the court finds that the action is based primarily on
disclosures of specific information, other than information
provided by the person bringing the action, relating to allegations
or transactions in a Texas or federal criminal or civil hearing, in
a Texas or federal legislative or administrative report, hearing,
audit, or investigation, or from the news media, the court may award
the amount the court considers appropriate but not more than 10
[seven] percent of the proceeds of the action. The court shall
consider the significance of the information and the role of the
person bringing the action in advancing the case to litigation.
(c) A payment to a person under this section shall be made
from the proceeds of the action. A person receiving a payment under
this section is also entitled to receive from the defendant an
amount for reasonable expenses, reasonable attorney's fees, and
costs that the court finds to have been necessarily incurred. The
court's determination of expenses, fees, and costs to be awarded
under this subsection shall be made only after the defendant has
been found liable in the action or the claim is settled [state
settles an action with a defendant that the court determined, after
a hearing, was fair, adequate, and reasonable in accordance with
Section 36.107(c)].
SECTION 4. Subsection (b), Section 36.113, Human Resources
Code, is amended to read as follows:
(b) The court shall dismiss [A person may not bring] an
action or claim under this subchapter, unless opposed by the
attorney general, if substantially the same [that is based on the
public disclosure of] allegations or transactions as alleged in the
action or claim were publicly disclosed in a Texas or federal
criminal or civil hearing in which the state or an agent of the
state is a party, in a Texas legislative or administrative report,
or other Texas hearing, audit, or investigation, or from the news
media, unless the person bringing the action is an original source
of the information. In this subsection, "original source" means an
individual who:
(1) prior to a public disclosure under this
subsection, has voluntarily disclosed to the state the information
on which allegations or transactions in a claim are based [has
direct and independent knowledge of the information on which the
allegations are based and has voluntarily provided the information
to the state before filing an action under this subchapter that is
based on the information]; or
(2) has knowledge that is independent of and
materially adds to the publicly disclosed allegation or
transactions [allegations] and who has voluntarily provided the
information to the state before filing an action under this
subchapter [that is based on the information].
SECTION 5. Section 36.115, Human Resources Code, is amended
by amending Subsection (a) and adding Subsection (c) to read as
follows:
(a) A person, including an employee, contractor, or agent,
who is discharged, demoted, suspended, threatened, harassed, or in
any other manner discriminated against in the terms and conditions
of employment because of a lawful act taken by the person or
associated others in furtherance of an action under this
subchapter, including investigation for, initiation of, testimony
for, or assistance in an action filed or to be filed under this
subchapter, or other efforts taken by the person to stop one or more
violations of Section 36.002 is entitled to:
(1) reinstatement with the same seniority status the
person would have had but for the discrimination; and
(2) not less than two times the amount of back pay,
interest on the back pay, and compensation for any special damages
sustained as a result of the discrimination, including litigation
costs and reasonable attorney's fees.
(c) A person must bring suit on an action under this section
not later than the third anniversary of the date on which the cause
of action accrues. For purposes of this section, the cause of
action accrues on the date the retaliation occurs.
SECTION 6. Subsection (c), Section 36.113, Human Resources
Code, is repealed.
SECTION 7. The changes in law made by this Act to Section
36.002, Human Resources Code, apply 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 that law is continued in effect
for that purpose.
SECTION 8. The changes in law made by this Act to Sections
36.110 and 36.113, Human Resources Code, apply only to a civil
action for a violation of Section 36.002, Human Resources Code, as
amended by this Act, commenced on or after the effective date of
this Act. A civil action commenced before the effective date of
this Act is governed by the law in effect immediately before the
effective date of this Act, and that law is continued in effect for
that purpose.
SECTION 9. The changes in law made by this Act to Section
36.115, Human Resources Code, apply only to a cause of action that
accrues on or after the effective date of this Act. A cause of
action that accrued before the effective date of this Act is
governed by the law applicable to the cause of action immediately
before the effective date of this Act, and that law is continued in
effect for that purpose.
SECTION 10. This Act takes effect September 1, 2013.