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.