By Cuellar, Coleman, Maxey, Dukes, Naishtat, H.B. No. 820
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to civil actions to recover fraudulent Medicaid claims.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 36, Human Resources Code, is amended by
1-5 designating Sections 36.001, 36.002, 36.007, 36.008, 36.009,
1-6 36.010, 36.011, and 36.012 as Subchapter A, renumbering Sections
1-7 36.007, 36.008, 36.009, 36.010, 36.011, and 36.012 as Sections
1-8 36.003, 36.004, 36.005, 36.006, 36.007, and 36.008, respectively,
1-9 and adding a subchapter heading to read as follows:
1-10 SUBCHAPTER A. GENERAL PROVISIONS
1-11 SECTION 2. Chapter 36, Human Resources Code, is amended by
1-12 designating Sections 36.003, 36.004, 36.005, and 36.006 as
1-13 Subchapter B, renumbering those sections as Sections 36.051,
1-14 36.052, 36.053, and 36.054, respectively, and adding a subchapter
1-15 heading to read as follows:
1-16 SUBCHAPTER B. ACTION BY ATTORNEY GENERAL
1-17 SECTION 3. Section 36.004, Human Resources Code, as
1-18 renumbered by this Act as Section 36.052, is amended by amending
1-19 Subsection (e) to read as follows:
1-20 (e) The attorney general may:
1-21 (1) bring an action for civil remedies under this
1-22 section together with a suit for injunctive relief under Section
1-23 36.051 [36.003]; or
1-24 (2) institute an action for civil remedies
1-25 independently of an action for injunctive relief.
2-1 SECTION 4. Section 36.005, Human Resources Code, as
2-2 renumbered by this Act as Section 36.053, is amended by amending
2-3 Subsection (b) to read as follows:
2-4 (b) In investigating an unlawful act, the attorney general
2-5 may:
2-6 (1) require the person to file on a prescribed form a
2-7 statement in writing, under oath or affirmation, as to all the
2-8 facts and circumstances concerning the alleged unlawful act and
2-9 other information considered necessary by the attorney general;
2-10 (2) examine under oath a person in connection with the
2-11 alleged unlawful act; and
2-12 (3) execute in writing and serve on the person a civil
2-13 investigative demand requiring the person to produce the
2-14 documentary material and permit inspection and copying of the
2-15 material under Section 36.054 [36.006].
2-16 SECTION 5. Section 36.009, Human Resources Code, as
2-17 renumbered by this Act as Section 36.005, is amended by amending
2-18 Subsection (a) and adding Subsection (c) to read as follows:
2-19 (a) The commissioner of human services, the commissioner of
2-20 public health, the commissioner of mental health and mental
2-21 retardation, the executive director of the Department of Protective
2-22 and Regulatory Services, or the executive director of another state
2-23 health care regulatory agency may suspend or revoke:
2-24 (1) a provider agreement between the department or
2-25 agency and a person found liable under Section 36.052 [36.004]; or
2-26 (2) a permit, license, or certification granted by the
2-27 department or agency to a person found liable under Section 36.052
3-1 [36.004].
3-2 (c) For purposes of this section, a person is considered to
3-3 have been found liable under Section 36.052 if the person is found
3-4 liable in an action brought under Subchapter C.
3-5 SECTION 6. Subchapter B, Chapter 36, Human Resources Code,
3-6 as designated by this Act, is amended by adding Section 36.055 to
3-7 read as follows:
3-8 Sec. 36.055. ATTORNEY GENERAL AS RELATOR IN FEDERAL ACTION.
3-9 To the extent permitted by 31 U.S.C. Sections 3729-3733, the
3-10 attorney general may bring an action as relator under 31 U.S.C.
3-11 Section 3730 with respect to an act in connection with the Medicaid
3-12 program for which a person may be held liable under 31 U.S.C.
3-13 Section 3729. The attorney general may contract with a private
3-14 attorney to represent the state under this section.
3-15 SECTION 7. Chapter 36, Human Resources Code, is amended by
3-16 adding Subchapter C to read as follows:
3-17 SUBCHAPTER C. ACTION BY PRIVATE PERSONS
3-18 Sec. 36.101. ACTION BY PRIVATE PERSON AUTHORIZED. (a) A
3-19 person may bring a civil action for a violation of Section 36.002
3-20 for the person and for the state. The action shall be brought in
3-21 the name of the person and of the state.
3-22 (b) In an action brought under this subchapter, a person who
3-23 violates Section 36.002 is liable as provided by Section 36.052.
3-24 Sec. 36.102. INITIATION OF ACTION. (a) A person bringing
3-25 an action under this subchapter shall serve a copy of the petition
3-26 and a written disclosure of substantially all material evidence and
3-27 information the person possesses on the attorney general in
4-1 compliance with the Texas Rules of Civil Procedure.
4-2 (b) The petition shall be filed in camera and shall remain
4-3 under seal until at least the 60th day after the date the petition
4-4 is filed. The petition may not be served on the defendant until
4-5 the court orders service on the defendant.
4-6 (c) The state may elect to intervene and proceed with the
4-7 action not later than the 60th day after the date the attorney
4-8 general receives the petition and the material evidence and
4-9 information.
4-10 (d) The state may, for good cause shown, move the court to
4-11 extend the time during which the petition remains under seal under
4-12 Subsection (b). A motion under this subsection may be supported by
4-13 affidavits or other submissions in camera.
4-14 (e) An action under this subchapter may be dismissed before
4-15 the end of the period prescribed by Subsection (b), as extended as
4-16 provided by Subsection (d), if applicable, only if the court and
4-17 the attorney general consent in writing to the dismissal and state
4-18 their reasons for consenting.
4-19 Sec. 36.103. ANSWER BY DEFENDANT. A defendant is not
4-20 required to file an answer to a petition filed under this
4-21 subchapter until the 20th day after the date the petition is
4-22 unsealed and served on the defendant in compliance with the Texas
4-23 Rules of Civil Procedure.
4-24 Sec. 36.104. CONTINUATION OR DISMISSAL OF ACTION BASED ON
4-25 STATE DECISION. (a) Not later than the last day of the period
4-26 prescribed by Section 36.102(b), as extended as provided by Section
4-27 36.102(d), if applicable, the state shall:
5-1 (1) proceed with the action; or
5-2 (2) notify the court that the state declines to take
5-3 over the action.
5-4 (b) If the state declines to take over the action, the court
5-5 shall dismiss the action.
5-6 Sec. 36.105. REPRESENTATION OF STATE BY PRIVATE ATTORNEY.
5-7 The attorney general may contract with a private attorney to
5-8 represent the state in an action under this subchapter with which
5-9 the state elects to proceed.
5-10 Sec. 36.106. INTERVENTION BY OTHER PARTIES PROHIBITED. A
5-11 person other than the state may not intervene or bring a related
5-12 action based on the facts underlying a pending action brought under
5-13 this subchapter.
5-14 Sec. 36.107. RIGHTS OF PARTIES IF STATE CONTINUES ACTION.
5-15 (a) If the state proceeds with the action, the state has the
5-16 primary responsibility for prosecuting the action and is not bound
5-17 by an act of the person bringing the action. The person bringing
5-18 the action has the right to continue as a party to the action,
5-19 subject to the limitations set forth by this section.
5-20 (b) The state may dismiss the action notwithstanding the
5-21 objections of the person bringing the action if:
5-22 (1) the attorney general notifies the person that the
5-23 state has filed a motion to dismiss; and
5-24 (2) the court provides the person with an opportunity
5-25 for a hearing on the motion.
5-26 (c) The state may settle the action with the defendant
5-27 notwithstanding the objections of the person bringing the action if
6-1 the court determines, after a hearing, that the proposed settlement
6-2 is fair, adequate, and reasonable under all the circumstances. On
6-3 a showing of good cause, the hearing may be held in camera.
6-4 (d) On a showing by the state that unrestricted
6-5 participation during the course of the litigation by the person
6-6 bringing the action would interfere with or unduly delay the
6-7 state's prosecution of the case, or would be repetitious,
6-8 irrelevant, or for purposes of harassment, the court may impose
6-9 limitations on the person's participation, including:
6-10 (1) limiting the number of witnesses the person may
6-11 call;
6-12 (2) limiting the length of the testimony of witnesses
6-13 called by the person;
6-14 (3) limiting the person's cross-examination of
6-15 witnesses; or
6-16 (4) otherwise limiting the participation by the person
6-17 in the litigation.
6-18 (e) On a showing by the defendant that unrestricted
6-19 participation during the course of the litigation by the person
6-20 bringing the action would be for purposes of harassment or would
6-21 cause the defendant undue burden or unnecessary expense, the court
6-22 may limit the participation by the person in the litigation.
6-23 Sec. 36.108. STAY OF CERTAIN DISCOVERY. (a) On a showing
6-24 by the state that certain actions of discovery by the person
6-25 bringing the action would interfere with the state's investigation
6-26 or prosecution of a criminal or civil matter arising out of the
6-27 same facts, the court may stay the discovery for a period not to
7-1 exceed 60 days.
7-2 (b) The court shall hear a motion to stay discovery under
7-3 this section in camera.
7-4 (c) The court may extend the period prescribed by Subsection
7-5 (a) on a further showing in camera that the state has pursued the
7-6 criminal or civil investigation or proceedings with reasonable
7-7 diligence and that any proposed discovery in the civil action will
7-8 interfere with the ongoing criminal or civil investigation or
7-9 proceedings.
7-10 Sec. 36.109. PURSUIT OF ALTERNATE REMEDY BY STATE. (a)
7-11 Notwithstanding Section 36.101, the state may elect to pursue the
7-12 state's claim through any alternate remedy available to the state,
7-13 including any administrative proceeding to determine an
7-14 administrative penalty. If an alternate remedy is pursued in
7-15 another proceeding, the person bringing the action has the same
7-16 rights in the other proceeding as the person would have had if the
7-17 action had continued under this subchapter.
7-18 (b) A finding of fact or conclusion of law made in the other
7-19 proceeding that has become final is conclusive on all parties to an
7-20 action under this subchapter. For purposes of this subsection, a
7-21 finding or conclusion is final if:
7-22 (1) the finding or conclusion has been finally
7-23 determined on appeal to the appropriate court;
7-24 (2) no appeal has been filed with respect to the
7-25 finding or conclusion and all time for filing an appeal has
7-26 expired; or
7-27 (3) the finding or conclusion is not subject to
8-1 judicial review.
8-2 Sec. 36.110. AWARD TO PRIVATE PLAINTIFF. (a) If the state
8-3 proceeds with an action under this subchapter, the person bringing
8-4 the action is entitled, except as provided by Subsection (b), to
8-5 receive at least 10 percent but not more than 25 percent of the
8-6 proceeds of the action, depending on the extent to which the person
8-7 substantially contributed to the prosecution of the action.
8-8 (b) If the court finds that the action is based primarily on
8-9 disclosures of specific information, other than information
8-10 provided by the person bringing the action, relating to allegations
8-11 or transactions in a criminal or civil hearing, in a legislative or
8-12 administrative report, hearing, audit, or investigation, or from
8-13 the news media, the court may award the amount the court considers
8-14 appropriate but not more than seven percent of the proceeds of the
8-15 action. The court shall consider the significance of the
8-16 information and the role of the person bringing the action in
8-17 advancing the case to litigation.
8-18 (c) A payment to a person under this section shall be made
8-19 from the proceeds of the action. A person receiving a payment
8-20 under this section is also entitled to receive an amount for
8-21 reasonable expenses that the court finds to have been necessarily
8-22 incurred, plus reasonable attorney's fees and costs. Expenses,
8-23 fees, and costs shall be awarded against the defendant.
8-24 (d) In this section, "proceeds of the action" includes
8-25 proceeds of a settlement of the action.
8-26 Sec. 36.111. REDUCTION OF AWARD. (a) If the court finds
8-27 that the action was brought by a person who planned and initiated
9-1 the violation of Section 36.002 on which the action was brought,
9-2 the court may, to the extent the court considers appropriate,
9-3 reduce the share of the proceeds of the action the person would
9-4 otherwise receive under Section 36.110, taking into account the
9-5 person's role in advancing the case to litigation and any relevant
9-6 circumstances pertaining to the violation.
9-7 (b) If the person bringing the action is convicted of
9-8 criminal conduct arising from the person's role in the violation of
9-9 Section 36.002, the court shall dismiss the person from the civil
9-10 action and the person may not receive any share of the proceeds of
9-11 the action. A dismissal under this subsection does not prejudice
9-12 the right of the state to continue the action.
9-13 Sec. 36.112. AWARD TO DEFENDANT FOR FRIVOLOUS ACTION.
9-14 Chapter 105, Civil Practice and Remedies Code, applies in an action
9-15 under this subchapter with which the state proceeds.
9-16 Sec. 36.113. CERTAIN ACTIONS BARRED. (a) A person may not
9-17 bring an action under this subchapter that is based on allegations
9-18 or transactions that are the subject of a civil suit or an
9-19 administrative penalty proceeding in which the state is already a
9-20 party.
9-21 (b) A person may not bring an action under this subchapter
9-22 that is based on the public disclosure of allegations or
9-23 transactions in a criminal or civil hearing, in a legislative or
9-24 administrative report, hearing, audit, or investigation, or from
9-25 the news media, unless the person bringing the action is an
9-26 original source of the information. In this subsection, "original
9-27 source" means an individual who has direct and independent
10-1 knowledge of the information on which the allegations are based and
10-2 has voluntarily provided the information to the state before filing
10-3 an action under this subchapter that is based on the information.
10-4 Sec. 36.114. STATE NOT LIABLE FOR CERTAIN EXPENSES. The
10-5 state is not liable for expenses that a person incurs in bringing
10-6 an action under this section.
10-7 Sec. 36.115. RETALIATION BY EMPLOYER AGAINST PERSON BRINGING
10-8 SUIT PROHIBITED. (a) A person who is discharged, demoted,
10-9 suspended, threatened, harassed, or in any other manner
10-10 discriminated against in the terms of employment by the person's
10-11 employer because of a lawful act taken by the person in furtherance
10-12 of an action under this subchapter, including investigation for,
10-13 initiation of, testimony for, or assistance in an action filed or
10-14 to be filed under this subchapter, is entitled to:
10-15 (1) reinstatement with the same seniority status the
10-16 person would have had but for the discrimination; and
10-17 (2) not less than two times the amount of back pay,
10-18 interest on the back pay, and compensation for any special damages
10-19 sustained as a result of the discrimination, including litigation
10-20 costs and reasonable attorney's fees.
10-21 (b) A person may bring an action in the appropriate district
10-22 court for the relief provided in this section.
10-23 Sec. 36.116. SOVEREIGN IMMUNITY NOT WAIVED. Except as
10-24 provided by Section 36.112, this subchapter does not waive
10-25 sovereign immunity.
10-26 SECTION 8. Chapter 531, Government Code, is amended by
10-27 adding Subchapter C to read as follows:
11-1 SUBCHAPTER C. MEDICAID FRAUD, MISUSE, OR OVERCHARGES
11-2 Sec. 531.101. AWARD FOR REPORTING MEDICAID FRAUD, MISUSE, OR
11-3 OVERCHARGES. (a) The commission may grant an award to an
11-4 individual who reports activity that constitutes fraud or misuse of
11-5 funds in the state Medicaid program or reports overcharges in the
11-6 program if the commission determines that the disclosure results in
11-7 the recovery of an overcharge or in the termination of the
11-8 fraudulent activity or misuse of funds.
11-9 (b) The commission shall determine the amount of an award.
11-10 The award must be equal to not less than 10 percent of the savings
11-11 to this state that result from the individual's disclosure. In
11-12 determining the amount of the award, the commission shall consider
11-13 how important the disclosure is in ensuring the fiscal integrity of
11-14 the program.
11-15 (c) An award under this section is subject to appropriation.
11-16 The award must be paid from money appropriated to or otherwise
11-17 available to the commission, and additional money may not be
11-18 appropriated to the commission for the purpose of paying the award.
11-19 (d) Payment of an award under this section from federal
11-20 funds is subject to the permissible use under federal law of funds
11-21 for this purpose.
11-22 (e) A person who brings an action under Subchapter C,
11-23 Chapter 36, Human Resources Code, is not eligible for an award
11-24 under this section.
11-25 Sec. 531.102. ASSISTING INVESTIGATIONS BY ATTORNEY GENERAL.
11-26 (a) The commission and the attorney general shall execute a
11-27 memorandum of understanding under which the commission shall
12-1 provide investigative support as required to the attorney general
12-2 in connection with cases under Subchapter B, Chapter 36, Human
12-3 Resources Code. Under the memorandum of understanding, the
12-4 commission shall assist in performing preliminary investigations
12-5 and ongoing investigations for actions prosecuted by the attorney
12-6 general under Subchapter C, Chapter 36, Human Resources Code.
12-7 (b) The memorandum of understanding must provide that the
12-8 commission is not required to provide investigative support in more
12-9 than 100 open investigations in a fiscal year.
12-10 SECTION 9. The office of the attorney general shall develop
12-11 strategies to increase state recoveries under 31 U.S.C. Sections
12-12 3729-3733. The office shall report the results of the office's
12-13 effort to the legislature not later than September 1, 1998.
12-14 SECTION 10. (a) In addition to the substantive changes made
12-15 by this Act, this Act conforms Chapter 531, Government Code, to
12-16 Section 1, Chapter 444, Acts of the 74th Legislature, Regular
12-17 Session, 1995.
12-18 (b) To the extent of any conflict, this Act prevails over
12-19 another Act of the 75th Legislature, Regular Session, 1997,
12-20 relating to nonsubstantive additions to and corrections in enacted
12-21 codes.
12-22 SECTION 11. Section 531.102, Government Code, as added by
12-23 this Act, takes effect only if the transfer of employees of the
12-24 Texas Department of Human Services and the Texas Department of
12-25 Health to the Health and Human Services Commission, as proposed by
12-26 Section 2, S.B. No. 741, or similar legislation, is enacted by the
12-27 75th Legislature in regular session and becomes law.
13-1 SECTION 12. The office of the attorney general shall study
13-2 the benefits of using private attorneys to prosecute civil actions
13-3 under Chapter 36, Human Resources Code. The office shall report
13-4 the results of the office's study to the legislature not later than
13-5 September 1, 1998.
13-6 SECTION 13. The office of the attorney general may retain a
13-7 reasonable portion of recoveries under this Act, not to exceed
13-8 amounts specified in the General Appropriations Act, for the
13-9 administration of this Act.
13-10 SECTION 14. This Act takes effect September 1, 1997.
13-11 SECTION 15. The importance of this legislation and the
13-12 crowded condition of the calendars in both houses create an
13-13 emergency and an imperative public necessity that the
13-14 constitutional rule requiring bills to be read on three several
13-15 days in each house be suspended, and this rule is hereby suspended.