By: Harris of Tarrant, Moncrief S.B. No. 209 Zaffirini A BILL TO BE ENTITLED AN ACT 1-1 relating to the crime victims compensation fund; providing civil 1-2 and administrative penalties. 1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-4 SECTION 1. The Crime Victims Compensation Act (Article 1-5 8309-1, Vernon's Texas Civil Statutes) is amended by adding Section 1-6 5 to read as follows: 1-7 Sec. 5. UTILIZATION REVIEW. (a) The attorney general may 1-8 adopt rules under which the attorney general may conduct or 1-9 contract for a utilization review of applications for benefits or 1-10 claims for pecuniary loss relating to psychological, psychiatric, 1-11 or other mental health services. 1-12 (b) In this section, "utilization review" means a system for 1-13 prospective, concurrent, or retrospective review of the necessity 1-14 and appropriateness of services being provided or proposed to be 1-15 provided to a victim. 1-16 SECTION 2. Subsection (a), Section 9, Crime Victims 1-17 Compensation Act (Article 8309-1, Vernon's Texas Civil Statutes), 1-18 is amended to read as follows: 1-19 (a) The attorney general on the attorney general's own 1-20 motion or on request of the claimant may reconsider a decision 1-21 making or denying an award or determining its amount. The attorney 1-22 general shall reconsider at least annually every award being paid 1-23 in installments. An order on reconsideration of an award shall not 1-24 require refund of amounts previously paid unless the award was paid 2-1 by mistake or obtained by fraud. 2-2 SECTION 3. The Crime Victims Compensation Act (Article 2-3 8309-1, Vernon's Texas Civil Statutes) is amended by adding 2-4 Sections 10A, 10B, and 10C to read as follows: 2-5 Sec. 10A. PUBLIC LETTER OF REPRIMAND. (a) The attorney 2-6 general may issue a letter of reprimand against a person if the 2-7 attorney general finds that the person has filed or has caused to 2-8 be filed under this Act an application for benefits or claim for 2-9 pecuniary loss that contains a statement or representation that the 2-10 person knows to be false. 2-11 (b) The attorney general must give the person notice of the 2-12 proposed action before issuing the letter. 2-13 (c) A proposal to issue a letter of reprimand is considered 2-14 a contested case for purposes of the Administrative Procedure and 2-15 Texas Register Act (Article 6252-13a, Vernon's Texas Civil 2-16 Statutes) and its subsequent amendments. 2-17 (d) A letter of reprimand issued under this section is 2-18 public information. 2-19 Sec. 10B. CIVIL PENALTY. (a) A person is subject to a 2-20 civil penalty of not less than $2,500 or more than $25,000 for each 2-21 application for benefits or claim for pecuniary loss that the 2-22 person files or causes to be filed under this Act that contains a 2-23 statement or representation that the person knows to be false. 2-24 (b) The attorney general shall institute and conduct the 2-25 suit authorized by this section in the name of this state. 2-26 (c) A civil penalty recovered under this section shall be 2-27 deposited to the credit of the Compensation to Victims of Crime 3-1 Fund. 3-2 (d) The civil penalty authorized by this section is in 3-3 addition to any other civil, administrative, or criminal penalty 3-4 provided by law. 3-5 (e) In addition to the civil penalty authorized by this 3-6 section, the attorney general may recover all expenses incurred by 3-7 the attorney general in the investigation, institution, and 3-8 prosecution of the suit including investigative costs, witness 3-9 fees, attorney fees, and deposition expenses. 3-10 Sec. 10C. ADMINISTRATIVE PENALTY. (a) A person who 3-11 presents or causes to be presented to the attorney general an 3-12 application for benefits or claim for pecuniary loss that contains 3-13 a statement or representation the person knows to be false is 3-14 liable to the attorney general for: 3-15 (1) the amount paid because of the false application 3-16 for benefits or claim for pecuniary loss and interest on that 3-17 amount determined at the rate provided by law for legal judgments 3-18 and accruing from the date on which the payment was made; 3-19 (2) payment of an administrative penalty not to exceed 3-20 twice the amount paid because of the false application for benefits 3-21 or claim for pecuniary loss; and 3-22 (3) payment of an administrative penalty of not more 3-23 than $10,000 for each item or service for which payment was 3-24 claimed. 3-25 (b) In determining the amount of the penalty to be assessed 3-26 under Subdivision (3) of Subsection (a) of this section, the 3-27 attorney general shall consider: 4-1 (1) the seriousness of the violation; 4-2 (2) whether the person had previously submitted a 4-3 false application for benefits or claim for pecuniary loss; and 4-4 (3) the amount necessary to deter the person from 4-5 submitting future false applications for benefits or claims for 4-6 pecuniary loss. 4-7 (c) If the attorney general determines that a violation has 4-8 occurred, the attorney general may issue a report that states the 4-9 facts on which the determination is made and the attorney general's 4-10 recommendation on the imposition of a penalty, including a 4-11 recommendation on the amount of the penalty. 4-12 (d) The attorney general shall give written notice of the 4-13 report to the person. The notice may be given by certified mail. 4-14 The notice must include a brief summary of the alleged violation 4-15 and a statement of the amount of the recommended penalty and must 4-16 inform the person that the person has a right to a hearing on the 4-17 occurrence of the violation, the amount of the penalty, or both the 4-18 occurrence of the violation and the amount of the penalty. 4-19 (e) Within 20 days after the date the person receives the 4-20 notice, the person in writing may accept the determination and 4-21 recommended penalty of the attorney general or may make a written 4-22 request for a hearing on the occurrence of the violation, the 4-23 amount of the penalty, or both the occurrence of the violation and 4-24 the amount of the penalty. 4-25 (f) If the person accepts the determination and recommended 4-26 penalty of the attorney general, the attorney general by order 4-27 shall approve the determination and impose the recommended penalty. 5-1 (g) If the person requests a hearing or fails to respond 5-2 timely to the notice, the attorney general shall set a hearing and 5-3 give notice of the hearing to the person. The administrative law 5-4 judge shall make findings of fact and conclusions of law and 5-5 promptly issue to the attorney general a proposal for a decision 5-6 about the occurrence of the violation and the amount of a proposed 5-7 penalty. According to the findings of fact, conclusions of law, 5-8 and proposal for a decision, the attorney general by order may find 5-9 that a violation has occurred and impose a penalty or may find that 5-10 no violation occurred. 5-11 (h) The notice of the attorney general's order given to the 5-12 person under the Administrative Procedure and Texas Register Act 5-13 (Article 6252-13a, Vernon's Texas Civil Statutes) and its 5-14 subsequent amendments must include a statement of the right of the 5-15 person to judicial review of the order. 5-16 (i) Within 30 days after the date the attorney general's 5-17 order is final as provided by Subsection (c) of Section 16, 5-18 Administrative Procedure and Texas Register Act (Article 6252-13a, 5-19 Vernon's Texas Civil Statutes), and its subsequent amendments, the 5-20 person shall: 5-21 (1) pay the amount of the penalty; 5-22 (2) pay the amount of the penalty and file a petition 5-23 for judicial review contesting the occurrence of the violation, the 5-24 amount of the penalty, or both the occurrence of the violation and 5-25 the amount of the penalty; or 5-26 (3) without paying the amount of the penalty, file a 5-27 petition for judicial review contesting the occurrence of the 6-1 violation, the amount of the penalty, or both the occurrence of the 6-2 violation and the amount of the penalty. 6-3 (j) Within the 30-day period, a person who acts under 6-4 Subdivision (3) of Subsection (i) of this section may: 6-5 (1) stay enforcement of the penalty by: 6-6 (A) paying the amount of the penalty to the 6-7 court for placement in an escrow account; or 6-8 (B) giving to the court a supersedeas bond 6-9 approved by the court for the amount of the penalty and that is 6-10 effective until all judicial review of the attorney general's order 6-11 is final; or 6-12 (2) request the court to stay enforcement of the 6-13 penalty by: 6-14 (A) filing with the court a sworn affidavit of 6-15 the person stating that the person is financially unable to pay the 6-16 amount of the penalty and is financially unable to give the 6-17 supersedeas bond; and 6-18 (B) giving a copy of the affidavit to the 6-19 attorney general by certified mail. 6-20 (k) On receipt by the attorney general of a copy of an 6-21 affidavit under Subdivision (2) of Subsection (j) of this section, 6-22 the attorney general may file, with the court within five days 6-23 after the date the copy is received, a contest to the affidavit. 6-24 The court shall hold a hearing on the facts alleged in the 6-25 affidavit as soon as practicable and shall stay the enforcement of 6-26 the penalty on finding that the alleged facts are true. The person 6-27 who files an affidavit has the burden of proving that the person is 7-1 financially unable to pay the amount of the penalty and to give a 7-2 supersedeas bond. 7-3 (l) If the person does not pay the amount of the penalty and 7-4 the enforcement of the penalty is not stayed, the attorney general 7-5 may file suit for collection of the amount of the penalty. 7-6 (m) Judicial review of the order of the attorney general: 7-7 (1) is instituted by filing a petition as provided by 7-8 Section 19, Administrative Procedure and Texas Register Act 7-9 (Article 6252-13a, Vernon's Texas Civil Statutes), and its 7-10 subsequent amendments; and 7-11 (2) is under the substantial evidence rule. 7-12 (n) If the court sustains the occurrence of the violation, 7-13 the court may uphold or reduce the amount of the penalty and order 7-14 the person to pay the full or reduced amount of the penalty. If 7-15 the court does not sustain the occurrence of the violation, the 7-16 court shall order that no penalty is owed. 7-17 (o) When the judgment of the court becomes final, the court 7-18 shall proceed under this subsection. If the person paid the amount 7-19 of the penalty and if that amount is reduced or is not upheld by 7-20 the court, the court shall order that the appropriate amount plus 7-21 accrued interest be remitted to the person. The rate of the 7-22 interest is the rate charged on loans to depository institutions by 7-23 the New York Federal Reserve Bank, and the interest shall be paid 7-24 for the period beginning on the date the penalty was paid and 7-25 ending on the date the penalty is remitted. If the person gave a 7-26 supersedeas bond and if the amount of the penalty is not upheld by 7-27 the court, the court shall order the release of the bond. If the 8-1 person gave a supersedeas bond and if the amount of the penalty is 8-2 reduced, the court shall order the release of the bond after the 8-3 person pays the amount. 8-4 (p) A penalty collected under this section shall be sent to 8-5 the comptroller and deposited to the credit of the Compensation to 8-6 Victims of Crime Fund. 8-7 (q) All proceedings under this section are subject to the 8-8 Administrative Procedure and Texas Register Act (Article 6252-13a, 8-9 Vernon's Texas Civil Statutes) and its subsequent amendments. 8-10 (r) In addition to the administrative penalty authorized by 8-11 this section, the attorney general may recover all expenses 8-12 incurred by the attorney general in the investigation, institution, 8-13 and prosecution of the suit including investigative costs, witness 8-14 fees, attorney's fees, and deposition expenses. 8-15 SECTION 4. Sections 10A, 10B, and 10C, Crime Victims 8-16 Compensation Act (Article 8309-1, Vernon's Texas Civil Statutes), 8-17 as added by Section 3 of this Act, apply only to an application for 8-18 benefits or claim for pecuniary loss that is filed on or after the 8-19 effective date of this Act. An application for benefits or claim 8-20 for pecuniary loss that is filed before the effective date of this 8-21 Act is governed by the law in effect when the application for 8-22 benefits or claim for pecuniary loss was filed, and that law is 8-23 continued in effect for that purpose. 8-24 SECTION 5. The importance of this legislation and the 8-25 crowded condition of the calendars in both houses create an 8-26 emergency and an imperative public necessity that the 8-27 constitutional rule requiring bills to be read on three several 9-1 days in each house be suspended, and this rule is hereby suspended, 9-2 and that this Act take effect and be in force from and after its 9-3 passage, and it is so enacted.