Texas 2023 - 88th Regular

Texas Senate Bill SB745 Compare Versions

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1	1	S.B. No. 745
2	2
3	3
4	4	AN ACT
5	5	relating to fraud prevention under certain health care programs.
6	6	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
7	7	SECTION 1. Article 39.026(a)(3), Code of Criminal
8	8	Procedure, is amended to read as follows:
9	9	(3) "Medicaid recipient" means an individual on whose
10	10	behalf a person claims or receives a payment from the Medicaid
11	11	program or a fiscal agent, without regard to whether the individual
12	12	was eligible for benefits under the Medicaid program [has the
13	13	meaning assigned by Section 36.001, Human Resources Code].
14	14	SECTION 2. The heading to Chapter 36, Human Resources Code,
15	15	is amended to read as follows:
16	16	CHAPTER 36. HEALTH CARE PROGRAM [MEDICAID] FRAUD PREVENTION
17	17	SECTION 3. Section 36.001, Human Resources Code, is amended
18	18	by amending Subdivisions (1), (2), (3), (5), (9), and (10) and
19	19	adding Subdivisions (1-a), (4-a), (4-b), and (4-c) to read as
20	20	follows:
21	21	(1) "Child health plan program" means the child health
22	22	plan program established under Chapters 62 and 63, Health and
23	23	Safety Code.
24	24	(1-a) "Claim" means a written or electronically
25	25	submitted request or demand that:
26	26	(A) is signed by a provider or a fiscal agent and
27	27	that identifies a product or service provided or purported to have
28	28	been provided to a health care [Medicaid] recipient as reimbursable
29	29	under a health care [the Medicaid] program, without regard to
30	30	whether the money that is requested or demanded is paid; or
31	31	(B) states the income earned or expense incurred
32	32	by a provider in providing a product or a service and that is used to
33	33	determine a rate of payment under a health care [the Medicaid]
34	34	program.
35	35	(2) "Documentary material" means a record, document,
36	36	or other tangible item of any form, including:
37	37	(A) a medical document or X ray prepared by a
38	38	person in relation to the provision or purported provision of a
39	39	product or service to a health care [Medicaid] recipient;
40	40	(B) a medical, professional, or business record
41	41	relating to:
42	42	(i) the provision of a product or service to
43	43	a health care [Medicaid] recipient; or
44	44	(ii) a rate or amount paid or claimed for a
45	45	product or service, including a record relating to a product or
46	46	service provided to a person other than a health care [Medicaid]
47	47	recipient as needed to verify the rate or amount;
48	48	(C) a record required to be kept by an agency that
49	49	regulates health care providers; or
50	50	(D) a record necessary to disclose the extent of
51	51	services a provider furnishes to health care [Medicaid] recipients.
52	52	(3) "Fiscal agent" means:
53	53	(A) a person who, through a contractual
54	54	relationship with a state agency, receives, processes, and pays a
55	55	claim under a health care [the Medicaid] program; or
56	56	(B) the designated agent of a person described by
57	57	Paragraph (A).
58	58	(4-a) "Health care program" means:
59	59	(A) the Medicaid program;
60	60	(B) the child health plan program; and
61	61	(C) the Healthy Texas Women program.
62	62	(4-b) "Health care recipient" means an individual on
63	63	whose behalf a person claims or receives a payment from a health
64	64	care program or a fiscal agent, without regard to whether the
65	65	individual was eligible for benefits under the health care program.
66	66	(4-c) "Healthy Texas Women program" means a program
67	67	operated by the commission that is substantially similar to the
68	68	demonstration project operated under former Section 32.0248 and
69	69	that is intended to expand access to preventive health and family
70	70	planning services for women in this state.
71	71	(5) "Managed care organization" means a person who is
72	72	authorized or otherwise permitted by law to arrange for or provide a
73	73	managed care plan [has the meaning assigned by Section 32.039(a)].
74	74	(9) "Provider" means a person who participates in or
75	75	who has applied to participate in a health care [the Medicaid]
76	76	program as a supplier of a product or service and includes:
77	77	(A) a management company that manages, operates,
78	78	or controls another provider;
79	79	(B) a person, including a medical vendor, that
80	80	provides a product or service to a provider or to a fiscal agent;
81	81	(C) an employee of a provider;
82	82	(D) a managed care organization; and
83	83	(E) a manufacturer or distributor of a product
84	84	for which a health care [the Medicaid] program provides
85	85	reimbursement.
86	86	(10) "Service" includes care or treatment of a health
87	87	care [Medicaid] recipient.
88	88	SECTION 4. Section 36.002, Human Resources Code, is amended
89	89	to read as follows:
90	90	Sec. 36.002. UNLAWFUL ACTS. A person commits an unlawful
91	91	act if the person:
92	92	(1) knowingly makes or causes to be made a false
93	93	statement or misrepresentation of a material fact to permit a
94	94	person to receive a benefit or payment under a health care [the
95	95	Medicaid] program that is not authorized or that is greater than the
96	96	benefit or payment that is authorized;
97	97	(2) knowingly conceals or fails to disclose
98	98	information that permits a person to receive a benefit or payment
99	99	under a health care [the Medicaid] program that is not authorized or
100	100	that is greater than the benefit or payment that is authorized;
101	101	(3) knowingly applies for and receives a benefit or
102	102	payment on behalf of another person under a health care [the
103	103	Medicaid] program and converts any part of the benefit or payment to
104	104	a use other than for the benefit of the person on whose behalf it was
105	105	received;
106	106	(4) knowingly makes, causes to be made, induces, or
107	107	seeks to induce the making of a false statement or
108	108	misrepresentation of material fact concerning:
109	109	(A) the conditions or operation of a facility in
110	110	order that the facility may qualify for certification or
111	111	recertification required by a health care [the Medicaid] program,
112	112	including certification or recertification as:
113	113	(i) a hospital;
114	114	(ii) a nursing facility or skilled nursing
115	115	facility;
116	116	(iii) a hospice;
117	117	(iv) an ICF-IID;
118	118	(v) an assisted living facility; or
119	119	(vi) a home health agency; or
120	120	(B) information required to be provided by a
121	121	federal or state law, rule, regulation, or provider agreement
122	122	pertaining to a health care [the Medicaid] program;
123	123	(5) except as authorized under a health care [the
124	124	Medicaid] program, knowingly pays, charges, solicits, accepts, or
125	125	receives, in addition to an amount paid under the [Medicaid]
126	126	program, a gift, money, a donation, or other consideration as a
127	127	condition to the provision of a service or product or the continued
128	128	provision of a service or product if the cost of the service or
129	129	product is paid for, in whole or in part, under the [Medicaid]
130	130	program;
131	131	(6) knowingly presents or causes to be presented a
132	132	claim for payment under a health care [the Medicaid] program for a
133	133	product provided or a service rendered by a person who:
134	134	(A) is not licensed to provide the product or
135	135	render the service, if a license is required; or
136	136	(B) is not licensed in the manner claimed;
137	137	(7) knowingly makes or causes to be made a claim under
138	138	a health care [the Medicaid] program for:
139	139	(A) a service or product that has not been
140	140	approved or acquiesced in by a treating physician or health care
141	141	practitioner;
142	142	(B) a service or product that is substantially
143	143	inadequate or inappropriate when compared to generally recognized
144	144	standards within the particular discipline or within the health
145	145	care industry; or
146	146	(C) a product that has been adulterated, debased,
147	147	mislabeled, or that is otherwise inappropriate;
148	148	(8) makes a claim under a health care [the Medicaid]
149	149	program and knowingly fails to indicate the type of license and the
150	150	identification number of the licensed health care provider who
151	151	actually provided the service;
152	152	(9) conspires to commit a violation of Subdivision
153	153	(1), (2), (3), (4), (5), (6), (7), (8), (10), (11), (12), or (13);
154	154	(10) is a managed care organization that contracts
155	155	with the commission or other state agency to provide or arrange to
156	156	provide health care benefits or services to individuals eligible
157	157	under a health care [the Medicaid] program and knowingly:
158	158	(A) fails to provide to an individual a health
159	159	care benefit or service that the organization is required to
160	160	provide under the contract;
161	161	(B) fails to provide to the commission or
162	162	appropriate state agency information required to be provided by
163	163	law, commission or agency rule, or contractual provision; or
164	164	(C) engages in a fraudulent activity in
165	165	connection with the enrollment of an individual eligible under the
166	166	[Medicaid] program in the organization's managed care plan or in
167	167	connection with marketing the organization's services to an
168	168	individual eligible under the [Medicaid] program;
169	169	(11) knowingly obstructs an investigation by the
170	170	attorney general of an alleged unlawful act under this section;
171	171	(12) knowingly makes, uses, or causes the making or
172	172	use of a false record or statement material to an obligation to pay
173	173	or transmit money or property to this state under a health care [the
174	174	Medicaid] program, or knowingly conceals or knowingly and
175	175	improperly avoids or decreases an obligation to pay or transmit
176	176	money or property to this state under a health care [the Medicaid]
177	177	program; or
178	178	(13) knowingly engages in conduct that constitutes a
179	179	violation under Section 32.039(b).
180	180	SECTION 5. Section 36.003(a), Human Resources Code, is
181	181	amended to read as follows:
182	182	(a) A state agency, including the commission, the
183	183	Department of State Health Services, the Department of Aging and
184	184	Disability Services, and the Department of Family and Protective
185	185	Services, shall provide the attorney general access to all
186	186	documentary materials of persons and health care [Medicaid]
187	187	recipients under a health care [the Medicaid] program to which that
188	188	agency has access. Documentary material provided under this
189	189	subsection is provided to permit investigation of an alleged
190	190	unlawful act or for use or potential use in an administrative or
191	191	judicial proceeding.
192	192	SECTION 6. Section 36.005(b), Human Resources Code, is
193	193	amended to read as follows:
194	194	(b) A provider found liable under Section 36.052 for an
195	195	unlawful act may not, for a period of 10 years, provide or arrange
196	196	to provide health care services under a health care [the Medicaid]
197	197	program or supply or sell, directly or indirectly, a product to or
198	198	under a health care [the Medicaid] program. The executive
199	199	commissioner may by rule:
200	200	(1) provide for a period of ineligibility longer than
201	201	10 years; or
202	202	(2) grant a provider a full or partial exemption from
203	203	the period of ineligibility required by this subsection if the
204	204	executive commissioner finds that enforcement of the full period of
205	205	ineligibility is harmful to the [Medicaid] program or a beneficiary
206	206	of the program.
207	207	SECTION 7. Section 36.008, Human Resources Code, is amended
208	208	to read as follows:
209	209	Sec. 36.008. USE OF MONEY RECOVERED. The legislature, in
210	210	appropriating money recovered under this chapter, shall consider
211	211	the requirements of the attorney general and other affected state
212	212	agencies in investigating health care program [Medicaid] fraud and
213	213	enforcing this chapter.
214	214	SECTION 8. Section 36.052(a), Human Resources Code, is
215	215	amended to read as follows:
216	216	(a) Except as provided by Subsection (c), a person who
217	217	commits an unlawful act is liable to the state for:
218	218	(1) the amount of any payment or the value of any
219	219	monetary or in-kind benefit provided under a health care [the
220	220	Medicaid] program, directly or indirectly, as a result of the
221	221	unlawful act, including any payment made to a third party;
222	222	(2) interest on the amount of the payment or the value
223	223	of the benefit described by Subdivision (1) at the prejudgment
224	224	interest rate in effect on the day the payment or benefit was
225	225	received or paid, for the period from the date the benefit was
226	226	received or paid to the date that the state recovers the amount of
227	227	the payment or value of the benefit;
228	228	(3) a civil penalty of:
229	229	(A) not less than $5,500 or the minimum amount
230	230	imposed as provided by 31 U.S.C. Section 3729(a), if that amount
231	231	exceeds $5,500, and not more than $15,000 or the maximum amount
232	232	imposed as provided by 31 U.S.C. Section 3729(a), if that amount
233	233	exceeds $15,000, for each unlawful act committed by the person that
234	234	results in injury to an elderly person, as defined by Section
235	235	48.002(a)(1), a person with a disability, as defined by Section
236	236	48.002(a)(8)(A), or a person younger than 18 years of age; or
237	237	(B) not less than $5,500 or the minimum amount
238	238	imposed as provided by 31 U.S.C. Section 3729(a), if that amount
239	239	exceeds $5,500, and not more than $11,000 or the maximum amount
240	240	imposed as provided by 31 U.S.C. Section 3729(a), if that amount
241	241	exceeds $11,000, for each unlawful act committed by the person that
242	242	does not result in injury to a person described by Paragraph (A);
243	243	and
244	244	(4) two times the amount of the payment or the value of
245	245	the benefit described by Subdivision (1).
246	246	SECTION 9. Section 36.054(h), Human Resources Code, is
247	247	amended to read as follows:
248	248	(h) A person who has committed an unlawful act in relation
249	249	to a health care [the Medicaid] program in this state has submitted
250	250	to the jurisdiction of this state and personal service of an
251	251	investigative demand under this section may be made on the person
252	252	outside of this state.
253	253	SECTION 10. Section 36.055, Human Resources Code, is
254	254	amended to read as follows:
255	255	Sec. 36.055. ATTORNEY GENERAL AS RELATOR IN FEDERAL ACTION.
256	256	To the extent permitted by 31 U.S.C. Sections 3729-3733, the
257	257	attorney general may bring an action as relator under 31 U.S.C.
258	258	Section 3730 with respect to an act in connection with a health care
259	259	[the Medicaid] program for which a person may be held liable under
260	260	31 U.S.C. Section 3729. The attorney general may contract with a
261	261	private attorney to represent the state under this section.
262	262	SECTION 11. Section 36.132(a)(2), Human Resources Code, is
263	263	amended to read as follows:
264	264	(2) "Licensing authority" means:
265	265	(A) the Texas Medical Board;
266	266	(B) the State Board of Dental Examiners;
267	267	(C) the Texas Behavioral Health Executive
268	268	Council;
269	269	(D) the Texas Board of Nursing;
270	270	(E) the Texas Board of Physical Therapy
271	271	Examiners;
272	272	(F) the Texas Board of Occupational Therapy
273	273	Examiners; or
274	274	(G) another state agency authorized to regulate a
275	275	provider who receives or is eligible to receive payment for a health
276	276	care service under a health care [the Medicaid] program.
277	277	SECTION 12. Sections 36.001(6) and (7), Human Resources
278	278	Code, are repealed.
279	279	SECTION 13. The changes in law made by this Act apply only
280	280	to an unlawful act described by Section 36.002, Human Resources
281	281	Code, as amended by this Act, that is committed on or after the
282	282	effective date of this Act.
283	283	SECTION 14. If before implementing any provision of this
284	284	Act a state agency determines that a waiver or authorization from a
285	285	federal agency is necessary for implementation of that provision,
286	286	the agency affected by the provision shall request the waiver or
287	287	authorization and may delay implementing that provision until the
288	288	waiver or authorization is granted.
289	289	SECTION 15. This Act takes effect September 1, 2023.
290	290	______________________________ ______________________________
291	291	President of the Senate Speaker of the House
292	292	I hereby certify that S.B. No. 745 passed the Senate on
293	293	April 3, 2023, by the following vote: Yeas 31, Nays 0.
294	294	______________________________
295	295	Secretary of the Senate
296	296	I hereby certify that S.B. No. 745 passed the House on
297	297	May 16, 2023, by the following vote: Yeas 139, Nays 1,
298	298	one present not voting.
299	299	______________________________
300	300	Chief Clerk of the House
301	301	Approved:
302	302	______________________________
303	303	Date
304	304	______________________________
305	305	Governor