Bill Text: TX SB544 | 2011-2012 | 82nd Legislature | Enrolled
Bill Title: Relating to unlawful acts against and criminal offenses involving the Medicaid program; providing penalties.
Spectrum: Slight Partisan Bill (Republican 3-1)
Status: (Passed) 2011-06-17 - Effective on 9/1/11 [SB544 Detail]
Download: Texas-2011-SB544-Enrolled.html
S.B. No. 544 |
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relating to unlawful acts against and criminal offenses involving | ||
the Medicaid program; providing penalties. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 36.001, Human Resources Code, is amended | ||
by adding Subdivisions (5-a) and (7-a) to read as follows: | ||
(5-a) "Material" means having a natural tendency to | ||
influence or to be capable of influencing. | ||
(7-a) "Obligation" means a duty, whether or not fixed, | ||
that arises from: | ||
(A) an express or implied contractual, | ||
grantor-grantee, or licensor-licensee relationship; | ||
(B) a fee-based or similar relationship; | ||
(C) a statute or regulation; or | ||
(D) the retention of any overpayment. | ||
SECTION 2. 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) 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 to conceal, avoid, or decrease 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 3. Subsection (a), Section 36.052, 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 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 [ |
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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 disabled person, 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 [ |
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amount imposed as provided by 31 U.S.C. Section 3729(a), if that | ||
amount exceeds $11,000, [ |
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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 4. Subsection (c), Section 36.110, Human Resources | ||
Code, is amended to read as follows: | ||
(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 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 5. Section 36.113, Human Resources Code, is amended | ||
by amending Subsection (b) and adding Subsection (c) to read as | ||
follows: | ||
(b) A person may not bring an action under this subchapter | ||
that is based on the public disclosure of allegations or | ||
transactions in a criminal or civil hearing in which the state or an | ||
agent of the state is a party, in a legislative or administrative | ||
report, 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) 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 allegations and who has | ||
voluntarily provided the information to the state before filing an | ||
action under this subchapter that is based on the information. | ||
(c) Before dismissing an action as barred under this | ||
section, the court shall give the attorney general an opportunity | ||
to oppose the dismissal. | ||
SECTION 6. The heading to Section 36.115, Human Resources | ||
Code, is amended to read as follows: | ||
Sec. 36.115. RETALIATION [ |
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SECTION 7. Subsection (a), Section 36.115, Human Resources | ||
Code, is amended 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 [ |
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taken by the person 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. | ||
SECTION 8. Subsection (a), Section 35A.02, Penal Code, is | ||
amended to read as follows: | ||
(a) A person commits an offense 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) 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 or | ||
under Section 32.039, 32.0391, or 36.002, Human Resources Code; or | ||
(12) knowingly makes, uses, or causes the making or | ||
use of a false record or statement to conceal, avoid, or decrease an | ||
obligation to pay or transmit money or property to this state under | ||
the Medicaid program. | ||
SECTION 9. (a) The changes in law made by this Act to | ||
Section 36.002, Human Resources Code, and Section 35A.02, Penal | ||
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. | ||
(b) For purposes of this section, conduct constituting an | ||
offense under the penal law of this state occurred before the | ||
effective date of this Act if any element of the offense occurred | ||
before that date. | ||
SECTION 10. The changes in law made by this Act to Sections | ||
36.052, 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 11. This Act takes effect September 1, 2011. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I hereby certify that S.B. No. 544 passed the Senate on | ||
March 30, 2011, by the following vote: Yeas 31, Nays 0; and that | ||
the Senate concurred in House amendment on May 23, 2011, by the | ||
following vote: Yeas 30, Nays 0. | ||
______________________________ | ||
Secretary of the Senate | ||
I hereby certify that S.B. No. 544 passed the House, with | ||
amendment, on May 18, 2011, by the following vote: Yeas 129, | ||
Nays 0, two present not voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
Approved: | ||
______________________________ | ||
Date | ||
______________________________ | ||
Governor |