88R3702 SCP-D
By: Noble H.B. No. 3779
A BILL TO BE ENTITLED
AN ACT
relating to fraud prevention under certain health care programs.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 39.026(a)(3), Code of Criminal
Procedure, is amended to read as follows:
(3) "Medicaid recipient" means an individual on whose
behalf a person claims or receives a payment from the Medicaid
program or a fiscal agent, without regard to whether the individual
was eligible for benefits under the Medicaid program [has the
meaning assigned by Section 36.001, Human Resources Code].
SECTION 2. The heading to Chapter 36, Human Resources Code,
is amended to read as follows:
CHAPTER 36. HEALTH CARE PROGRAM [MEDICAID] FRAUD PREVENTION
SECTION 3. Section 36.001, Human Resources Code, is amended
by amending Subdivisions (1), (2), (3), (5), (9), and (10) and
adding Subdivisions (4-a) and (4-b) to read as follows:
(1) "Claim" means a written or electronically
submitted request or demand that:
(A) is signed by a provider or a fiscal agent and
that identifies a product or service provided or purported to have
been provided to a health care [Medicaid] recipient as reimbursable
under a health care [the Medicaid] program, without regard to
whether the money that is requested or demanded is paid; or
(B) states the income earned or expense incurred
by a provider in providing a product or a service and that is used to
determine a rate of payment under a health care [the Medicaid]
program.
(2) "Documentary material" means a record, document,
or other tangible item of any form, including:
(A) a medical document or X ray prepared by a
person in relation to the provision or purported provision of a
product or service to a health care [Medicaid] recipient;
(B) a medical, professional, or business record
relating to:
(i) the provision of a product or service to
a health care [Medicaid] recipient; or
(ii) a rate or amount paid or claimed for a
product or service, including a record relating to a product or
service provided to a person other than a health care [Medicaid]
recipient as needed to verify the rate or amount;
(C) a record required to be kept by an agency that
regulates health care providers; or
(D) a record necessary to disclose the extent of
services a provider furnishes to health care [Medicaid] recipients.
(3) "Fiscal agent" means:
(A) a person who, through a contractual
relationship with a state agency, receives, processes, and pays a
claim under a health care [the Medicaid] program; or
(B) the designated agent of a person described by
Paragraph (A).
(4-a) "Health care program" has the meaning assigned
by Section 35A.01, Penal Code.
(4-b) "Health care recipient" means an individual on
whose behalf a person claims or receives a payment from a health
care program or a fiscal agent, without regard to whether the
individual was eligible for benefits under the health care program.
(5) "Managed care organization" means a person who is
authorized or otherwise permitted by law to arrange for or provide a
managed care plan [has the meaning assigned by Section 32.039(a)].
(9) "Provider" means a person who participates in or
who has applied to participate in a health care [the Medicaid]
program as a supplier of a product or service and includes:
(A) a management company that manages, operates,
or controls another provider;
(B) a person, including a medical vendor, that
provides a product or service to a provider or to a fiscal agent;
(C) an employee of a provider;
(D) a managed care organization; and
(E) a manufacturer or distributor of a product
for which a health care [the Medicaid] program provides
reimbursement.
(10) "Service" includes care or treatment of a health
care [Medicaid] recipient.
SECTION 4. 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 a health care [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 a health care [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 a health care [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 a health care [the Medicaid] program,
including certification or recertification as:
(i) a hospital;
(ii) a nursing facility or skilled nursing
facility;
(iii) a hospice;
(iv) an ICF-IID;
(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 a health care [the Medicaid] program;
(5) except as authorized under a health care [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 a health care [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
a health care [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 a health care [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);
(10) is a managed care organization that contracts
with the commission or other state agency to provide or arrange to
provide health care benefits or services to individuals eligible
under a health care [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 an obligation to pay
or transmit money or property to this state under a health care [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 a health care [the Medicaid]
program; [or]
(13) knowingly engages in conduct that constitutes a
violation under Section 32.039(b); or
(14) otherwise engages in conduct that constitutes an
offense under Section 35A.02(a), Penal Code.
SECTION 5. Section 36.003(a), Human Resources Code, is
amended to read as follows:
(a) A state agency, including the commission, the
Department of State Health Services, the Department of Aging and
Disability Services, and the Department of Family and Protective
Services, shall provide the attorney general access to all
documentary materials of persons and health care [Medicaid]
recipients under a health care [the Medicaid] program to which that
agency has access. Documentary material provided under this
subsection is provided to permit investigation of an alleged
unlawful act or for use or potential use in an administrative or
judicial proceeding.
SECTION 6. Section 36.005(b), Human Resources Code, is
amended to read as follows:
(b) A provider found liable under Section 36.052 for an
unlawful act may not, for a period of 10 years, provide or arrange
to provide health care services under a health care [the Medicaid]
program or supply or sell, directly or indirectly, a product to or
under a health care [the Medicaid] program. The executive
commissioner may by rule:
(1) provide for a period of ineligibility longer than
10 years; or
(2) grant a provider a full or partial exemption from
the period of ineligibility required by this subsection if the
executive commissioner finds that enforcement of the full period of
ineligibility is harmful to the [Medicaid] program or a beneficiary
of the program.
SECTION 7. Section 36.008, Human Resources Code, is amended
to read as follows:
Sec. 36.008. USE OF MONEY RECOVERED. The legislature, in
appropriating money recovered under this chapter, shall consider
the requirements of the attorney general and other affected state
agencies in investigating health care program [Medicaid] fraud and
enforcing this chapter.
SECTION 8. Section 36.052(a), Human Resources Code, is
amended to read as follows:
(a) Except as provided by Subsection (c), a person who
commits an unlawful act is liable to the state for:
(1) the amount of any payment or the value of any
monetary or in-kind benefit provided under a health care [the
Medicaid] program, directly or indirectly, as a result of the
unlawful act, including any payment made to a third party;
(2) interest on the amount of the payment or the value
of the benefit described by Subdivision (1) at the prejudgment
interest rate in effect on the day the payment or benefit was
received or paid, for the period from the date the benefit was
received or paid to the date that the state recovers the amount of
the payment or value of the benefit;
(3) a civil penalty of:
(A) not less than $5,500 or the minimum amount
imposed as provided by 31 U.S.C. Section 3729(a), if that amount
exceeds $5,500, and not more than $15,000 or the maximum amount
imposed as provided by 31 U.S.C. Section 3729(a), if that amount
exceeds $15,000, for each unlawful act committed by the person that
results in injury to an elderly person, as defined by Section
48.002(a)(1), a person with a disability, as defined by Section
48.002(a)(8)(A), or a person younger than 18 years of age; or
(B) not less than $5,500 or the minimum amount
imposed as provided by 31 U.S.C. Section 3729(a), if that amount
exceeds $5,500, and not more than $11,000 or the maximum amount
imposed as provided by 31 U.S.C. Section 3729(a), if that amount
exceeds $11,000, for each unlawful act committed by the person that
does not result in injury to a person described by Paragraph (A);
and
(4) two times the amount of the payment or the value of
the benefit described by Subdivision (1).
SECTION 9. Section 36.054(h), Human Resources Code, is
amended to read as follows:
(h) A person who has committed an unlawful act in relation
to a health care [the Medicaid] program in this state has submitted
to the jurisdiction of this state and personal service of an
investigative demand under this section may be made on the person
outside of this state.
SECTION 10. Section 36.055, Human Resources Code, is
amended to read as follows:
Sec. 36.055. ATTORNEY GENERAL AS RELATOR IN FEDERAL ACTION.
To the extent permitted by 31 U.S.C. Sections 3729-3733, the
attorney general may bring an action as relator under 31 U.S.C.
Section 3730 with respect to an act in connection with a health care
[the Medicaid] program for which a person may be held liable under
31 U.S.C. Section 3729. The attorney general may contract with a
private attorney to represent the state under this section.
SECTION 11. Section 36.132(a)(2), Human Resources Code, is
amended to read as follows:
(2) "Licensing authority" means:
(A) the Texas Medical Board;
(B) the State Board of Dental Examiners;
(C) the Texas Behavioral Health Executive
Council;
(D) the Texas Board of Nursing;
(E) the Texas Board of Physical Therapy
Examiners;
(F) the Texas Board of Occupational Therapy
Examiners; or
(G) another state agency authorized to regulate a
provider who receives or is eligible to receive payment for a health
care service under a health care [the Medicaid] program.
SECTION 12. Sections 36.001(6) and (7), Human Resources
Code, are repealed.
SECTION 13. The changes in law made by this Act apply only
to an unlawful act described by Section 36.002, Human Resources
Code, as amended by this Act, that is committed on or after the
effective date of this Act.
SECTION 14. 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 15. This Act takes effect September 1, 2023.