By Maxey                                              H.B. No. 2315
         76R8487 PB/KLA-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the investigation and prosecution of fraud in certain
 1-3     benefit programs operated by the state; providing administrative
 1-4     penalties.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6               ARTICLE 1.  POWERS AND DUTIES OF THE EMPLOYEES
 1-7                         RETIREMENT SYSTEM OF TEXAS
 1-8           SECTION 1.01.  The Texas Employees Uniform Group Insurance
 1-9     Benefits Act (Article 3.50-2, Vernon's Texas Insurance Code) is
1-10     amended by amending Section 4B and by adding Sections 4D, 4E, 4F,
1-11     and 4G to read as follows:
1-12           Sec. 4B.  ADJUDICATION OF CLAIMS; FRAUDULENT CLAIMS.  (a)
1-13     The executive director of the Employees Retirement System of Texas
1-14     has exclusive authority to determine all questions relating to
1-15     enrollment in or payment of claims arising from programs or
1-16     coverages provided under authority of this Act, other than
1-17     questions relating to payment of claims by a health maintenance
1-18     organization.
1-19           (b) [(a-1)]  If the executive director determines that a
1-20     participant has obtained coverage under any program provided under
1-21     the authority of this Act through the use of any material
1-22     misrepresentation or fraud or has fraudulently induced the
1-23     extension of coverage by making a material misrepresentation or by
1-24     supplying false information on any application for coverage or
 2-1     related documentation or in any communication, the executive
 2-2     director may rescind the coverage to the date of the inception of
 2-3     the coverage or to the date of the fraudulent act or material
 2-4     misrepresentation, deny any claim arising out of the fraudulently
 2-5     induced coverage, or both.  Remedies available to the executive
 2-6     director under this subsection are in addition to and independent
 2-7     of any expulsion action that may be instituted under Section 13A of
 2-8     this Act.
 2-9           (c)  If the executive director determines that a health care
2-10     provider has obtained payments under any program provided under the
2-11     authority of this Act through a fraudulent insurance act, the
2-12     executive director shall take action against the provider as
2-13     provided by Section 4D of this Act.
2-14           (d)  A decision of the executive director under Subsection
2-15     (b) or (c) of this section [subsection] may be appealed to the
2-16     trustee as provided by Subsection (f) [(c)] of this section.
2-17           (e) [(b)]  The authority of the executive director to
2-18     determine questions includes the authority to determine that a
2-19     claim arising under any program administered by the trustee may
2-20     expose the program to double or multiple liability.  The executive
2-21     director may cause suit concerning the claim to be filed in a
2-22     district court in Travis County on behalf of the Employees
2-23     Retirement System of Texas to protect the program from double or
2-24     multiple liability.
2-25           (f) [(c)]  A decision by the executive director under
2-26     Subsection (a), (b), or (c) [(a-1)] of this section may be appealed
2-27     only to the trustee.  An appeal to the trustee is a contested case
 3-1     under the administrative procedure law, Chapter 2001, Government
 3-2     Code.  Standing to pursue an administrative appeal under this
 3-3     section is limited to employees, annuitants, and covered dependents
 3-4     participating in the Texas employees uniform group insurance
 3-5     program and to health care providers providing services under that
 3-6     program or, after the death of a participant or an affected
 3-7     provider, to that person's [the participant's] estate, personal
 3-8     representative, heirs at law, or designated beneficiary.
 3-9           (g) [(d)]  On appeal of a decision made by the trustee under
3-10     Subsection (f) [(c)] of this section, the standard of review is by
3-11     substantial evidence.
3-12           (h) [(e)]  The trustee may delegate its duties to hear
3-13     appeals to the executive director.
3-14           (i) [(f)]  The executive director may delegate the duties of
3-15     the executive director under this section to another person who is
3-16     employed by the Employees Retirement System of Texas.
3-17           (j)  The trustee shall maintain a toll-free telephone number
3-18     for the receipt of complaints regarding fraudulent insurance acts
3-19     by participants or health care providers.  The trustee shall
3-20     provide participants with information regarding the telephone
3-21     number during each annual enrollment period and periodically shall
3-22     notify employees of the telephone number by including information
3-23     with employee pay statements.
3-24           (k)  The executive director shall implement annual training
3-25     classes for appropriate members of the staff of the trustee and
3-26     contractors or administering firms who process medical claims under
3-27     this Act to assist those persons in identifying potential
 4-1     misrepresentation or fraud in the operation of the uniform group
 4-2     insurance program established by this Act.  The executive director
 4-3     may contract with the Health and Human Services Commission or with
 4-4     a private entity  for the operation of the training classes.
 4-5           (l)  Each carrier and health care provider who participates
 4-6     in the uniform group insurance program shall, as a condition of
 4-7     that participation, cooperate fully in any investigation of a
 4-8     fraudulent insurance act that is conducted by the executive
 4-9     director or the Texas Department of Insurance, including providing
4-10     to the trustee timely access to patient medical records determined
4-11     by the trustee to be necessary to conduct an investigation.
4-12     Notwithstanding any other law regarding the confidentiality of
4-13     patient records, the trustee is entitled to access to patient
4-14     medical records for the limited purpose provided by this subsection
4-15     and is a "governmental agency" for purposes of Section 5.08,
4-16     Medical Practice Act (Article 4495b, Vernon's Texas Civil
4-17     Statutes).  A medical record submitted to the trustee under this
4-18     subsection is confidential and is not subject to disclosure under
4-19     Chapter 552, Government Code.
4-20           Sec. 4D.  FRAUDULENT INSURANCE ACTS BY PROVIDERS.  (a)  The
4-21     executive director shall investigate each complaint alleging a
4-22     fraudulent insurance act made by an annuitant, an employee, a
4-23     health care provider, or a carrier regarding a health care provider
4-24     participating in a health benefit plan operated under the uniform
4-25     group insurance program.
4-26           (b)  If, after initial investigation, the executive director
4-27     determines that the complaint is unfounded, the executive director
 5-1     shall terminate the investigation.  If the executive director
 5-2     determines that further action is warranted, the executive director
 5-3     shall refer the complaint to the trustee for appropriate sanctions
 5-4     or administrative action and shall provide information regarding
 5-5     the complaint and the action taken to the Texas Department of
 5-6     Insurance and the affected carrier.
 5-7           (c)  Sanctions against a health care provider may include:
 5-8                 (1)  exclusion from participation as a provider in the
 5-9     program;
5-10                 (2)  withholding during the pendency of an
5-11     investigation, payments to be made to the provider;
5-12                 (3)  recoupment of unauthorized payments from future
5-13     payments made to the provider; and
5-14                 (4)  restrictions on provider reimbursement.
5-15           (d)  Administrative actions against a health care provider
5-16     may include:
5-17                 (1)  peer review of claims;
5-18                 (2)  required participation by the provider in
5-19     educational programs conducted by the trustee or the Texas
5-20     Department of Insurance regarding insurance fraud;
5-21                 (3)  required prior authorization for claims;
5-22                 (4)  review of payments made to the provider, both
5-23     before and after health care services are provided; and
5-24                 (5)  referral to the appropriate licensing agency for
5-25     further disciplinary action.
5-26           (e)  The executive director shall use fraud detection
5-27     software to identify suspicious provider billing patterns in the
 6-1     claims history files of the system.  The executive director shall
 6-2     report the results of the use of the software to the trustee and
 6-3     the commissioner of insurance at least monthly.
 6-4           Sec. 4E.  CLAIMS AUDIT.  (a)  The executive director shall
 6-5     conduct a quarterly audit of health care claims as provided by this
 6-6     section.
 6-7           (b)  The executive director shall randomly select claims
 6-8     submitted under the uniform group insurance program, in a
 6-9     percentage set by the trustee of total claims made during the
6-10     preceding quarter, to audit the claims to determine the validity of
6-11     the claims.  In performing the audit, the executive director shall
6-12     interview employees, annuitants, and dependents in person or by
6-13     telephone to ensure that the services were received.  The audit
6-14     must also include a review of contextual patient information and
6-15     the patient's medical records.
6-16           (c)  If the executive director determines on the basis of the
6-17     audit that a claim is fraudulent, the executive director shall
6-18     refer the claim to the trustee and the Texas Department of
6-19     Insurance for further investigation.
6-20           (d)  The executive director may contract with a private
6-21     entity  for the operation of the audit.
6-22           Sec. 4F.  COOPERATION WITH INSURANCE DEPARTMENT; MEMORANDUM
6-23     OF UNDERSTANDING.  (a)  The trustee and the commissioner of
6-24     insurance by rule shall adopt guidelines and priorities for
6-25     referring cases of alleged fraudulent insurance acts by health care
6-26     providers participating in the program.
6-27           (b)  The executive director shall maintain a detailed record
 7-1     of those cases, including:
 7-2                 (1)  the total number of cases referred to the Texas
 7-3     Department of Insurance each fiscal year; and
 7-4                 (2)  for each specific case:
 7-5                       (A)  the type of fraudulent insurance act
 7-6     alleged; and
 7-7                       (B)  the date of the referral to the Texas
 7-8     Department of Insurance.
 7-9           (c)  The trustee and the Texas Department of Insurance shall
7-10     enter into a memorandum of understanding regarding the processing
7-11     of referrals of suspected fraudulent insurance acts in the uniform
7-12     group insurance program and the payment of the costs of prosecution
7-13     of fraud cases.
7-14           Sec. 4G.  ADMINISTRATIVE PENALTY.  (a)  The trustee may
7-15     impose an administrative penalty on a participant or health care
7-16     provider who commits a fraudulent insurance act in obtaining a
7-17     benefit or a payment under this Act.
7-18           (b)  The amount of the penalty may not exceed $10,000, and
7-19     each day a violation continues or occurs is a separate violation
7-20     for the purpose of imposing a penalty.  The amount shall be based
7-21     on:
7-22                 (1)  the seriousness of the violation, including the
7-23     nature, circumstances, extent, and gravity of the violation;
7-24                 (2)  the history of previous violations;
7-25                 (3)  the amount necessary to deter a future violation;
7-26                 (4)  efforts to correct the violation; and
7-27                 (5)  any other matter that justice may require.
 8-1           (c)  The enforcement of the penalty may be stayed during the
 8-2     time the order is under judicial review if the person pays the
 8-3     penalty to the clerk of the court or files a supersedeas bond with
 8-4     the court in the amount of the penalty.  A person who cannot afford
 8-5     to pay the penalty or file the bond may stay the enforcement by
 8-6     filing an affidavit in the manner required by the Texas Rules of
 8-7     Civil Procedure for a party who cannot afford to file security for
 8-8     costs, subject to the right of the board to contest the affidavit
 8-9     as provided by those rules.
8-10           (d)  The attorney general may sue to collect the penalty.
8-11           (e)  Fifty percent of an administrative penalty collected
8-12     under this section shall be deposited in the employees life,
8-13     accident, and health insurance and benefits fund established under
8-14     Section 16 of this Act and may be spent by the trustee in
8-15     investigating and prosecuting fraudulent insurance acts committed
8-16     against the state employees uniform group benefits program. The
8-17     remainder of the administrative penalty shall be remitted to the
8-18     comptroller for deposit in the general revenue fund.
8-19           (f)  A proceeding to impose the penalty is considered to be a
8-20     contested case under Chapter 2001, Government Code.
8-21           SECTION 1.02.  Section 815.510, Government Code, is amended
8-22     to read as follows:
8-23           Sec. 815.510.  ANNUAL REPORT.  (a)  The Employees Retirement
8-24     System of Texas shall submit a report not later than the 25th day
8-25     of the month following the end of each fiscal year to the governor,
8-26     the lieutenant governor, the speaker of the house of
8-27     representatives, the executive director of the State Pension Review
 9-1     Board, the appropriate oversight committees of the house and
 9-2     senate, and the Legislative Budget Board.  The report shall
 9-3     include:
 9-4                 (1)  the following information regarding the
 9-5     investments made by the retirement system:
 9-6                       (A) [(1)]  the current end-of-fiscal-year market
 9-7     value of the trust fund;
 9-8                       (B) [(2)]  the asset allocations of the trust
 9-9     fund expressed in percentages of stocks, fixed income, cash, or
9-10     other financial investments; and
9-11                       (C) [(3)]  the investment performance of the
9-12     trust fund utilizing accepted industry measurement standards; and
9-13                 (2)  a description of the activities conducted during
9-14     the preceding fiscal year by the retirement system and the Texas
9-15     Department of Insurance under Sections 4B, 4D, 4E, and 4F, Texas
9-16     Employees Uniform Group Insurance Benefits Act (Article 3.50-2,
9-17     Vernon's Texas Insurance Code), to combat fraudulent insurance acts
9-18     by health care providers in the operation of the state employees
9-19     health benefits program.
9-20           (b)  The report required by this section is the only periodic
9-21     report of investments required to be made by the retirement system
9-22     other than a report required by [Section 815.108 or] the General
9-23     Appropriations Act.
9-24                      ARTICLE 2.  POWERS AND DUTIES OF
9-25                        TEXAS DEPARTMENT OF INSURANCE
9-26           SECTION 2.01.  Chapter 1, Insurance Code, is amended by
9-27     adding Article 1.64 to read as follows:
 10-1          Art. 1.64.  ADMINISTRATIVE ACTIONS AGAINST INSURANCE FRAUD IN
 10-2    GROUP INSURANCE PROGRAM FOR STATE EMPLOYEES.  (a)  The department,
 10-3    through the insurance fraud division and in cooperation with the
 10-4    Employees Retirement System of Texas, shall bring an administrative
 10-5    action under this article against a health care provider who
 10-6    commits a fraudulent insurance act regarding the group insurance
 10-7    program for state employees  administered under the Texas Employees
 10-8    Uniform Group Insurance Benefits Act (Article 3.50-2, Vernon's
 10-9    Texas Insurance Code) that results in payments to the provider that
10-10    are not authorized under that program.
10-11          (b)  On determination that a health care provider has
10-12    committed a fraudulent insurance act subject to Subsection (a) of
10-13    this article, the commissioner may impose an administrative penalty
10-14    under Article 1.10E of this code in an amount not to exceed $10,000
10-15    plus twice the amount of the inappropriate payment.
10-16          (c)  Notwithstanding Section 6, Article 1.10E of this code,
10-17    50 percent of an administrative penalty collected under this
10-18    article shall be deposited in the Texas Department of Insurance
10-19    operating fund established under Article 1.31A of this code and may
10-20    be spent by the department in investigating and prosecuting
10-21    fraudulent insurance acts committed against state-funded health
10-22    care programs. The remainder of the administrative penalty shall be
10-23    remitted to the comptroller for deposit in the general revenue
10-24    fund.
10-25                        ARTICLE 3.  QUI TAM ACTION
10-26          SECTION 3.01.  Chapter 1, Insurance Code, is amended by
10-27    adding Article 1.65 to read as follows:
 11-1          Art. 1.65.  ACTION BY PRIVATE PERSON
 11-2          Sec. 1.  ACTION BY PRIVATE PERSON AUTHORIZED.  (a)  A person
 11-3    may bring a civil action for a fraudulent insurance act committed
 11-4    in violation of Section 4B, Texas Employees Uniform Group Insurance
 11-5    Benefits Act (Article 3.50-2, Vernon's Texas Insurance Code), for
 11-6    the person and for the state.  The action shall be brought in the
 11-7    name of the state.
 11-8          (b)  In an action brought under this article, a person who
 11-9    commits a fraudulent insurance act with respect to a claim under
11-10    the Texas Employees Uniform Group Insurance Benefits Act (Article
11-11    3.50-2, Vernon's Texas Insurance Code) is liable for the amount of
11-12    loss incurred by the uniform group insurance program or a carrier
11-13    who participates in the program as a result of the loss, plus an
11-14    amount equivalent to the amount of the administrative penalty that
11-15    may be assessed under that Act.
11-16          Sec. 2.  INITIATION OF ACTION.  (a)  A person bringing an
11-17    action under this article shall serve a copy of the petition and a
11-18    written disclosure of substantially all material evidence and
11-19    information the person possesses on the attorney general in
11-20    compliance with the Texas Rules of Civil Procedure.
11-21          (b)  The petition shall be filed in camera and shall remain
11-22    under seal until at least the 60th day after the date the petition
11-23    is filed.  The petition may not be served on the defendant until
11-24    the court orders service on the defendant.
11-25          (c)  The state may elect to intervene and proceed with the
11-26    action not later than the 60th day after the date the attorney
11-27    general receives the petition and the material evidence and
 12-1    information.
 12-2          (d)  The state may, for good cause shown, move the court to
 12-3    extend the time during which the petition remains under seal under
 12-4    Subsection (b) of this section.  A motion under this subsection may
 12-5    be supported by affidavits or other submissions in camera.
 12-6          (e)  An action under this article may be dismissed before the
 12-7    end of the period prescribed by Subsection (b) of this section, as
 12-8    extended as provided by Subsection (d) of this section, if
 12-9    applicable, only if the court and the attorney general consent in
12-10    writing to the dismissal and state their reasons for consenting.
12-11          Sec. 3.  ANSWER BY DEFENDANT.  A defendant is not required to
12-12    file an answer to a petition filed under this article until the
12-13    20th day after the date the petition is unsealed and served on the
12-14    defendant in compliance with the Texas Rules of Civil Procedure.
12-15          Sec. 4.  STATE'S DECISION TO CONTINUE ACTION.  Not later than
12-16    the last day of the period prescribed by Section 2(b) of this
12-17    article, as extended as provided by Section 2(d) of this article,
12-18    if applicable, the state  shall notify the court that the state:
12-19                (1)  will intervene and proceed with the action; or
12-20                (2)  declines to intervene and proceed with the action.
12-21          Sec. 5.  INTERVENTION BY OTHER PARTIES PROHIBITED.  A person
12-22    other than the state may not intervene or bring a related action
12-23    based on the facts underlying a pending action brought under this
12-24    article.
12-25          Sec. 6.  RIGHTS OF PARTIES IF STATE INTERVENES AND PROCEEDS
12-26    WITH ACTION.  (a)  If the state proceeds with the action, the state
12-27    has the primary responsibility for prosecuting the action and is
 13-1    not bound by an act of the person bringing the action.  The person
 13-2    bringing the action has the right to continue as a party to the
 13-3    action subject to the limitations set forth by this section.
 13-4          (b)  The state may dismiss the action notwithstanding the
 13-5    objections of the person bringing the action if:
 13-6                (1)  the attorney general notifies the person that the
 13-7    state has filed a motion to dismiss; and
 13-8                (2)  the court provides the person with an opportunity
 13-9    for a hearing on the motion.
13-10          (c)  The state may settle the action with the defendant
13-11    notwithstanding the objections of the person bringing the action if
13-12    the court determines, after a hearing, that the proposed settlement
13-13    is fair, adequate, and reasonable under all the circumstances.  On
13-14    a showing of good cause, the hearing may be held in camera.
13-15          (d)  On a showing by the state that unrestricted
13-16    participation during the course of the litigation by the person
13-17    bringing the action would interfere with or unduly delay the
13-18    state's prosecution of the case, or would be repetitious,
13-19    irrelevant, or for purposes of harassment, the court may impose
13-20    limitations on the person's participation, including:
13-21                (1)  limiting the number of witnesses the person may
13-22    call;
13-23                (2)  limiting the length of the testimony of witnesses
13-24    called by the person;
13-25                (3)  limiting the person's cross-examination of
13-26    witnesses; or
13-27                (4)  otherwise limiting the participation by the person
 14-1    in the litigation.
 14-2          (e)  On a showing by the defendant that unrestricted
 14-3    participation during the course of the litigation by the person
 14-4    bringing the action would be for purposes of harassment or would
 14-5    cause the defendant undue burden or unnecessary expense, the court
 14-6    may limit the participation by the person in the litigation.
 14-7          Sec. 7.  RIGHTS OF PARTIES IF STATE DOES NOT INTERVENE AND
 14-8    PROCEED WITH ACTION.  (a)  If the state elects not to proceed with
 14-9    the action, the person bringing the action may conduct the action.
14-10          (b)  If the state requests pleadings and deposition
14-11    transcripts, the parties shall serve the attorney general with
14-12    copies of all pleadings filed in the action and shall send the
14-13    attorney general copies of all deposition transcripts at the
14-14    state's expense.
14-15          (c)  The court, without limiting the status and rights of the
14-16    person bringing the action, may permit the state to intervene at a
14-17    later date on a showing of good cause.
14-18          Sec. 8.  STAY OF CERTAIN DISCOVERY.  (a)  Regardless of
14-19    whether the state proceeds with the action, on a showing by the
14-20    state that discovery by the person bringing the action would
14-21    interfere with the state's investigation or prosecution of a
14-22    criminal or civil matter arising out of the same facts, the court
14-23    may stay the discovery for a period not to exceed 60 days.
14-24          (b)  The court shall hear a motion to stay discovery under
14-25    this section in camera.
14-26          (c)  The court may extend the period prescribed by Subsection
14-27    (a)  on a further showing in camera that the state has pursued the
 15-1    criminal or civil investigation or proceedings with reasonable
 15-2    diligence and that discovery in the civil action will interfere
 15-3    with the ongoing criminal or civil investigation or proceedings.
 15-4          Sec. 9.  PURSUIT OF ALTERNATE REMEDY BY STATE.
 15-5    Notwithstanding Section 1 of this article, the state may elect to
 15-6    pursue the state's claim through any alternate remedy available to
 15-7    the state, including any administrative proceeding to determine an
 15-8    administrative penalty.
 15-9          Sec. 10.  AWARD TO PRIVATE PLAINTIFF.  (a)  If the state
15-10    proceeds with an action under this article, the person bringing the
15-11    action is entitled, except as provided by Subsection (b) of this
15-12    section, to receive at least 10 percent but not more than 25
15-13    percent of the proceeds of the action, depending on the extent to
15-14    which the person substantially contributed to the prosecution of
15-15    the action.
15-16          (b)  If the court finds that the action is based primarily on
15-17    disclosures of specific information, other than information
15-18    provided by the person bringing the action, relating to allegations
15-19    or transactions in a criminal or civil proceeding, in a legislative
15-20    or administrative report, hearing, audit, or investigation, or from
15-21    the news media, the court may award to the person bringing the
15-22    action the amount the court considers appropriate but not more than
15-23    seven percent of the proceeds of the action.  The court shall
15-24    consider the significance of the information and the role of the
15-25    person bringing the action in advancing the case to litigation.
15-26          (c)  If the state does not proceed with an action under this
15-27    article, the person bringing the action or settling the claim is
 16-1    entitled to receive an amount that the court decides is reasonable
 16-2    for collecting the civil penalty and damages.  The amount may not
 16-3    be less than 25 percent or more than 30 percent of the proceeds of
 16-4    the action.
 16-5          (d)  A payment to a person under this section shall be made
 16-6    from the proceeds of the action.  A person receiving a payment
 16-7    under this section is also entitled to receive an amount for
 16-8    reasonable expenses that the court finds to have been necessarily
 16-9    incurred, plus reasonable attorney's fees and costs.  Expenses,
16-10    fees, and costs shall be awarded against the defendant.
16-11          (e)  In this section, "proceeds of the action" includes
16-12    proceeds of a settlement of the action.
16-13          Sec. 11.  REDUCTION OF AWARD.  (a)  Regardless of whether the
16-14    state proceeds with the action, if the court finds that the action
16-15    was brought by a person who planned and initiated the violation on
16-16    which the action was brought, the court may, to the extent the
16-17    court considers appropriate, reduce the share of the proceeds of
16-18    the action the person would otherwise receive under Section 10 of
16-19    this article, taking into account the person's role in advancing
16-20    the case to litigation and any relevant circumstances pertaining to
16-21    the violation.
16-22          (b)  If the person bringing the action is convicted of
16-23    criminal conduct arising from the person's fraudulent insurance
16-24    act, the court shall dismiss the person from the civil action and
16-25    the person may not receive any share of the proceeds of the action.
16-26    A dismissal under this subsection does not prejudice the right of
16-27    the state to continue the action.
 17-1          Sec. 12.  AWARD TO DEFENDANT FOR FRIVOLOUS ACTION.  (a)
 17-2    Chapter 10, Civil Practice and Remedies Code, applies in an action
 17-3    under this article in which the state does not proceed with the
 17-4    action and the person originally bringing the action conducts the
 17-5    action.
 17-6          (b)  Chapter 105, Civil Practice and Remedies Code, applies
 17-7    in an action under this article in which the state conducts the
 17-8    action.
 17-9          Sec. 13.  CERTAIN ACTIONS BARRED.  (a)  A person may not
17-10    bring an action under this article that is based on allegations or
17-11    transactions that are the subject of a pending civil suit or an
17-12    administrative penalty proceeding in which the state is a party.
17-13          (b)  A person may not bring an action under this article that
17-14    is based on the public disclosure of allegations or transactions in
17-15    a criminal or civil hearing, in a legislative or administrative
17-16    report, hearing, audit, or investigation, or from the news media,
17-17    unless the person bringing the action is an original source of the
17-18    information.  In this subsection, "original source" means an
17-19    individual who has direct and independent knowledge of the
17-20    information on which the allegations are based and has voluntarily
17-21    provided the information to the state before filing an action under
17-22    this article that is based on the information.
17-23          Sec. 14.  STATE NOT LIABLE FOR CERTAIN EXPENSES.  The state
17-24    is not liable for expenses that a person incurs in bringing an
17-25    action under this section.
17-26          Sec. 15.  RETALIATION BY EMPLOYER AGAINST PERSON BRINGING
17-27    SUIT PROHIBITED.  (a)  A person who is discharged, demoted,
 18-1    suspended, threatened, harassed, or in any other manner
 18-2    discriminated against in the terms of employment by the person's
 18-3    employer because of a lawful act taken by the person in furtherance
 18-4    of an action under this article, including investigation for,
 18-5    initiation of, testimony for, or assistance in an action filed or
 18-6    to be filed under this article, is entitled to:
 18-7                (1)  reinstatement with the same seniority status the
 18-8    person would have had but for the discrimination; and
 18-9                (2)  an amount equal to not less than:
18-10                      (A)  two times the amount of back pay;
18-11                      (B)  interest on the back pay; and
18-12                      (C)  compensation for any special damages
18-13    sustained as a result of the discrimination, including litigation
18-14    costs and reasonable attorney's fees.
18-15          (b)  A person may bring an action in a district court for the
18-16    relief provided in this section.
18-17           ARTICLE 4.  POWERS AND DUTIES OF THE STATE OFFICE OF
18-18                              RISK MANAGEMENT
18-19          SECTION 4.01.  Chapter 412, Labor Code, is amended by adding
18-20    Subchapter G to read as follows:
18-21             SUBCHAPTER G.  FRAUD INVESTIGATION AND PREVENTION
18-22                        REGARDING MEDICAL BENEFITS
18-23          Sec. 412.061.  DEFINITIONS.  In this subchapter:
18-24                (1)  "Fraudulent act" means any act that violates a
18-25    penal law and is committed or attempted to be committed to obtain
18-26    or deny a workers' compensation medical benefit or payment for a
18-27    service provided in conjunction with a medical benefit.
 19-1                (2)  "Program" means the workers' compensation program
 19-2    for state employees administered under Chapter 501.
 19-3          Sec. 412.062.  CLAIM REVIEW BY OFFICE.  (a)  The office shall
 19-4    conduct periodic reviews of claims for medical benefits as
 19-5    necessary to determine the medical necessity and appropriateness of
 19-6    the provided services.
 19-7          (b)  In addition to the periodic reviews under Subsection
 19-8    (a), the office shall conduct a claim review on each claim:
 19-9                (1)  that involves the receipt of psychiatric services;
19-10    or
19-11                (2)  in which the use of prescription drugs appears
19-12    inappropriate.
19-13          (c)  The office may withhold payments to be made to a health
19-14    care  provider who does not provide, in the manner prescribed by
19-15    the risk management board, documentation requested by the office
19-16    necessary to verify a medical service related to a claim.
19-17          Sec. 412.063.  CLAIMS AUDIT.  (a)  The director shall conduct
19-18    an annual audit of claims for medical benefits as provided by this
19-19    section.
19-20          (b)  The director shall randomly select claims submitted
19-21    under the program  for medical benefits, in a percentage of total
19-22    claims made during the year set by the board as necessary to obtain
19-23    a statistically significant sample, and shall audit the claims to
19-24    determine the validity of the claims.  In performing the audit, the
19-25    director shall interview the claimant in person or by telephone to
19-26    ensure that the health care services were received.  The audit must
19-27    also include a review of the claimant's medical history and medical
 20-1    records.
 20-2          (c)  The director may contract with a private entity  for
 20-3    performance of the audit.
 20-4          Sec. 412.064.  PREPAYMENT AUDIT.  The board by rule shall
 20-5    require each person who processes claims for the office to
 20-6    implement a prepayment audit procedure that:
 20-7                (1)  compares the diagnosis code submitted on the bill
 20-8    for health care services to the code for the injured body part; and
 20-9                (2)  verifies the appropriateness of the diagnosis code
20-10    for the health care services provided.
20-11          Sec. 412.065.  TOLL-FREE TELEPHONE NUMBER.  (a)  The office
20-12    shall maintain a toll-free telephone number for the receipt of
20-13    complaints regarding fraudulent acts by claimants or health care
20-14    providers.
20-15          (b)  The director shall provide claimants with information
20-16    regarding the telephone number when a workers' compensation claim
20-17    is submitted and periodically shall notify state employees of the
20-18    telephone number in a manner determined to be appropriate by the
20-19    office.
20-20          Sec. 412.066.  TRAINING CLASSES IN FRAUD PREVENTION.
20-21    (a)  The director shall implement annual training classes for
20-22    appropriate members of the staff of state agencies and contractors
20-23    or administering firms who process workers' compensation claims
20-24    submitted under the program for medical benefits to assist those
20-25    persons in identifying potential misrepresentation or fraud in the
20-26    operation of the program.
20-27          (b)  The director may contract with the Health and Human
 21-1    Services Commission or with a private entity  for the operation of
 21-2    the training classes.
 21-3          Sec. 412.067.  ACTION BY OFFICE; COOPERATION REQUIRED.
 21-4    (a)  If the office determines that a health care provider has
 21-5    obtained payments under the program through a fraudulent act, the
 21-6    office shall take action against the provider as provided by this
 21-7    subchapter.  The office shall report any action taken in writing to
 21-8    the commission.
 21-9          (b)  Each state agency and health care provider who
21-10    participates in the program shall, as a condition of that
21-11    participation, cooperate fully in any investigation of a fraudulent
21-12    act that is conducted by the director, including providing to the
21-13    director timely access to patient medical records determined by the
21-14    director to be necessary to conduct an investigation.
21-15          (c)  Notwithstanding any other law regarding the
21-16    confidentiality of patient records, the director is entitled to
21-17    access to patient medical records for the limited purpose provided
21-18    by this subchapter and is a "governmental agency" for purposes of
21-19    Section 5.08, Medical Practice Act (Article 4495b, Vernon's Texas
21-20    Civil Statutes).  A medical record submitted to the director under
21-21    this subsection is confidential and is not subject to disclosure
21-22    under Chapter 552, Government Code.
21-23          Sec. 412.068.  FRAUDULENT ACTS BY PROVIDERS.  (a)  The
21-24    director shall investigate each complaint alleging a fraudulent act
21-25    made by a claimant, a health care provider, or a state agency
21-26    regarding a health care provider who is participating in the
21-27    program.
 22-1          (b)  If, after initial investigation, the director determines
 22-2    that the complaint is unfounded, the director shall terminate the
 22-3    investigation.  If the director determines that further action is
 22-4    warranted, the director shall refer the complaint to the risk
 22-5    management board for appropriate sanctions or administrative action
 22-6    and shall provide information regarding the complaint and the
 22-7    action taken to the commission.
 22-8          (c)  Sanctions against a health care provider may include:
 22-9                (1)  exclusion from participation as a provider in the
22-10    program;
22-11                (2)  withholding during the pendency of an
22-12    investigation payments to be made to the provider;
22-13                (3)  recoupment of unauthorized payments from future
22-14    payments made to the provider; and
22-15                (4)  restrictions on provider reimbursement.
22-16          Sec. 412.069.  ADMINISTRATIVE PENALTY.  (a)  The risk
22-17    management board may impose an administrative penalty on a health
22-18    care provider or claimant who commits a fraudulent act in obtaining
22-19    a payment or a medical benefit under Chapter 501.
22-20          (b)  The amount of the penalty may not exceed $10,000, and
22-21    each day a violation continues or occurs is a separate violation
22-22    for the purpose of imposing a penalty.  The amount shall be based
22-23    on:
22-24                (1)  the seriousness of the violation, including the
22-25    nature, circumstances, extent, and gravity of the violation;
22-26                (2)  the history of previous violations;
22-27                (3)  the amount necessary to deter a future violation;
 23-1                (4)  efforts to correct the violation; and
 23-2                (5)  any other matter that justice may require.
 23-3          (c)  The enforcement of the penalty may be stayed during the
 23-4    time the order is under judicial review if the person pays the
 23-5    penalty to the clerk of the court or files a supersedeas bond with
 23-6    the court in the amount of the penalty.  A person who cannot afford
 23-7    to pay the penalty or file the bond may stay the enforcement by
 23-8    filing an affidavit in the manner required by the Texas Rules of
 23-9    Civil Procedure for a party who cannot afford to file security for
23-10    costs, subject to the right of the board to contest the affidavit
23-11    as provided by those rules.
23-12          (d)  The attorney general may sue to collect the penalty.
23-13          (e)  Except as otherwise provided by this subsection, an
23-14    administrative penalty collected under this section shall be
23-15    transmitted by the office to the comptroller for deposit in the
23-16    general revenue fund.  The comptroller shall deposit an amount not
23-17    to exceed $200,000 per state fiscal biennium in the state workers'
23-18    compensation account in the general revenue fund to be used for the
23-19    detection and prosecution of fraud under this subchapter.
23-20          (f)  A proceeding to impose the penalty is considered to be a
23-21    contested case under Chapter 2001, Government Code.
23-22         ARTICLE 5.  POWERS AND DUTIES OF THE TEXAS DEPARTMENT OF
23-23        HUMAN SERVICES AND THE HEALTH AND HUMAN SERVICES COMMISSION
23-24          SECTION 5.01.  Subchapter B, Chapter 32, Human Resources
23-25    Code, is amended by adding Sections 32.0242 and 32.0243 to read as
23-26    follows:
23-27          Sec. 32.0242.  VERIFICATION OF CERTAIN INFORMATION.  (a)  The
 24-1    department shall verify the applicant's residential address on
 24-2    determination that an applicant is eligible for medical assistance.
 24-3          (b)  The department may not accept a post office box number
 24-4    in lieu of a residential address for an applicant unless the
 24-5    applicant provides an alternative physical address at which the
 24-6    applicant can be contacted and that can be verified by the
 24-7    department.
 24-8          Sec. 32.0243.  PERIODIC REVIEW OF ELIGIBILITY FOR CERTAIN
 24-9    RECIPIENTS.  (a)  The department, in cooperation with the United
24-10    States Social  Security Administration, shall periodically review
24-11    the eligibility of a recipient of medical assistance who is
24-12    eligible on the basis of the recipient's eligibility for
24-13    Supplemental Security Income (SSI) benefits under 42 U.S.C.
24-14    Section 1381 et seq., as amended.
24-15          (b)  In reviewing the eligibility of a recipient as required
24-16    by Subsection (a), the department shall ensure that only recipients
24-17    who reside in  this state and who continue to be eligible for
24-18    Supplemental Security Income (SSI) benefits under 42 U.S.C.
24-19    Section 1381 et seq., as amended, remain eligible for medical
24-20    assistance.
24-21          SECTION 5.02.  Section 403.026(a), Government Code, as added
24-22    by Chapter 1153, Acts of the 75th Legislature, Regular Session,
24-23    1997, is amended to read as follows:
24-24          (a)  The comptroller shall conduct a study each biennium to
24-25    determine:
24-26                (1)  the number and type of fraudulent claims for
24-27    medical or health care benefits submitted:
 25-1                      (A) [(1)]  under the state Medicaid program;
 25-2                      (B) [(2)]  under group health insurance programs
 25-3    administered through the Employees Retirement System of Texas for
 25-4    active and retired  state employees; or
 25-5                      (C) [(3)]  by or on behalf of a state employee
 25-6    and administered by the attorney general under Chapter 501, Labor
 25-7    Code; and
 25-8                (2)  the need for changes to the eligibility system
 25-9    used under the state Medicaid program.
25-10          SECTION 5.03.  Section 531.102, Government Code, is amended
25-11    by adding Subsections (e) and (f) to read as follows:
25-12          (e)  In setting the priorities for the office as required by
25-13    Subsection (b), the commission shall assign the highest priority
25-14    for investigation  of potential fraud to claims submitted for
25-15    reimbursement for:
25-16                (1)  outpatient hospital services;
25-17                (2)  ancillary services;
25-18                (3)  emergency room services; and
25-19                (4)  home health care services.
25-20          (f)  The commission by rule shall set specific claims
25-21    criteria that, when met, require the office to begin an
25-22    investigation.  The claims  criteria must be based on a total
25-23    dollar amount or a total number of claims submitted for services to
25-24    a particular recipient during a specified amount of time that
25-25    indicates a high potential for fraud.
25-26          SECTION 5.04.  Subchapter C, Chapter 531, Government Code, is
25-27    amended by adding Sections 531.109, 531.110, and 531.111 to read as
 26-1    follows:
 26-2          Sec. 531.109.  SELECTION AND REVIEW OF CLAIMS.  (a)  The
 26-3    commission shall annually select and review a random, statistically
 26-4    valid sample of all claims for reimbursement under the state
 26-5    Medicaid program, including the vendor drug program, for potential
 26-6    cases of fraud, waste, or abuse.
 26-7          (b)  In conducting the annual review of claims under
 26-8    Subsection (a), the commission must directly contact a recipient by
 26-9    telephone or in person, or both, to verify that the services for
26-10    which a claim for reimbursement was submitted by a provider were
26-11    actually provided to the recipient.
26-12          (c)  Based on the results of the annual review of claims, the
26-13    commission shall determine the types of claims at which commission
26-14    resources for fraud and abuse detection should be primarily
26-15    directed.
26-16          Sec. 531.110.  ELECTRONIC DATA MATCHING PROGRAM.  (a)  The
26-17    commission shall conduct electronic data matches for a recipient of
26-18    assistance under the state Medicaid program at least quarterly to
26-19    verify the identity, income, employment status, and other factors
26-20    that affect the eligibility of the recipient.
26-21          (b)  To verify eligibility of a recipient for assistance
26-22    under the state Medicaid program, the electronic data matching must
26-23    match information provided by the recipient with information
26-24    contained in databases maintained by:
26-25                (1)  the Texas Workers' Compensation Commission;
26-26                (2)  the Texas Workforce Commission;
26-27                (3)  the Texas Department of Criminal Justice;
 27-1                (4)  the Internal Revenue Service;
 27-2                (5)  the United States Social Security Administration;
 27-3    and
 27-4                (6)  states that border this state.
 27-5          (c)  The Texas Department of Human Services shall cooperate
 27-6    with the commission by providing data or any other assistance
 27-7    necessary to  conduct the electronic data matches required by this
 27-8    section.
 27-9          (d)  The commission may contract with a public or private
27-10    entity to conduct the electronic data matches required by this
27-11    section.
27-12          (e)  The commission by rule shall establish procedures to
27-13    verify the electronic data matches conducted under this section.
27-14    Not later than the 20th day after the date the  electronic data
27-15    match is verified, the Texas Department of Human Services shall
27-16    remove from eligibility a recipient who is determined to be
27-17    ineligible for assistance under the state Medicaid program.
27-18          (f)  The commission shall report biennially to the
27-19    legislature  the results of the electronic data matching program.
27-20    The report must include a summary of the number of applicants who
27-21    were removed from eligibility for assistance under the state
27-22    Medicaid program as a result of an electronic data match conducted
27-23    under this section.
27-24          Sec. 531.111.  FRAUD DETECTION TECHNOLOGY.  The commission
27-25    may contract with a contractor who specializes in developing
27-26    technology capable of identifying patterns of fraud exhibited by
27-27    Medicaid recipients to:
 28-1                (1)  develop and implement the fraud detection
 28-2    technology; and
 28-3                (2)  determine if a pattern of fraud by Medicaid
 28-4    recipients is present in the recipients' eligibility files
 28-5    maintained by the Texas Department of Human Services.
 28-6                          ARTICLE 6.  TRANSITION
 28-7          SECTION 6.01.  The Employees Retirement System of Texas shall
 28-8    implement the toll-free telephone number required under Section
 28-9    4B(j), Texas Employees Uniform Group Insurance Benefits Act
28-10    (Article 3.50-2, Vernon's Texas Insurance Code), as added by this
28-11    Act, not later than January 1, 2000.
28-12          SECTION 6.02.  The Employees Retirement System of Texas shall
28-13    implement the training classes required under Section 4B(k), Texas
28-14    Employees Uniform Group Insurance Benefits Act (Article 3.50-2,
28-15    Vernon's Texas Insurance Code), as added by this  Act, not later
28-16    than January 1, 2000.
28-17          SECTION 6.03.  (a)  The executive director of the Employees
28-18    Retirement System of Texas shall use fraud detection software as
28-19    required under Section 4D(e), Texas Employees Uniform Group
28-20    Insurance Benefits Act (Article 3.50-2, Vernon's Texas Insurance
28-21    Code), as added by this  Act, not later than September 1, 2000.
28-22          (b)  Not later than March 1, 2000, the Employees Retirement
28-23    System of Texas shall analyze the fraud detection program used by
28-24    the Health and Human Services Commission under Chapter 22, Human
28-25    Resources Code, for the detection of fraud in the Medicaid program.
28-26    If the retirement system determines that participation in that
28-27    program would result in compliance with the requirement adopted
 29-1    under Section 4D(e), Texas Employees Uniform Group Insurance
 29-2    Benefits Act (Article 3.50-2, Vernon's Texas Insurance Code), as
 29-3    added by this Act, with greater efficiency and less cost than
 29-4    implementation of an independent program, the retirement system
 29-5    shall enter into a memorandum of understanding with the Health and
 29-6    Human Services Commission regarding that participation not later
 29-7    than July 1, 2000, and shall pay a proportionate share of the
 29-8    operation of the fraud detection program.
 29-9          SECTION 6.04.  The Employees Retirement System of Texas and
29-10    the Texas Department of Insurance shall enter into the memorandum
29-11    of understanding required under Section 4F, Texas Employees Uniform
29-12    Group Insurance Benefits Act (Article 3.50-2, Vernon's Texas
29-13    Insurance Code), as added by this Act, not later than January 1,
29-14    2000.
29-15          SECTION 6.05.  The State Office of Risk Management shall
29-16    implement the toll-free telephone number required under Section
29-17    412.065, Labor Code, as added by this  Act, not later than January
29-18    1, 2000.
29-19          SECTION 6.06.  The State Office of Risk Management shall
29-20    implement the training classes required under Section 412.066,
29-21    Labor Code, as added by this  Act, not later than January 1, 2000.
29-22          SECTION 6.07.  The risk management board of the State Office
29-23    of Risk Management shall conduct a study regarding the use of fraud
29-24    detection software.  The study may include an analysis of the fraud
29-25    detection program used by the Health and Human Services Commission
29-26    under Chapter 22, Human Resources Code, for the detection of fraud
29-27    in the Medicaid program.  The risk management board shall report
 30-1    the results of its study to the 77th Legislature not later than
 30-2    February 1, 2001.
 30-3          SECTION 6.08.  The Health and Human Services Commission, in
 30-4    cooperation with the office of inspector general of the Texas
 30-5    Department of Human Services, shall study and consider for
 30-6    implementation  fraud detection technology or any other technology
 30-7    that can identify information in the eligibility file of a Medicaid
 30-8    recipient that indicates potential fraud and the need for further
 30-9    investigation.
30-10          SECTION 6.09.  (a)  Not later than December 31, 1999, the
30-11    Texas Department of Health shall contract with a contractor who
30-12    specializes in Medicaid claims payment systems to perform tests on
30-13    a Medicaid claims payment system considered for implementation by
30-14    the department to:
30-15                (1)  ensure the smooth and timely payment of claims;
30-16                (2)  ensure accuracy of claims payments; and
30-17                (3)  reveal inconsistencies in the payment system.
30-18          (b)  The contract under Subsection (a) must require the
30-19    contractor to perform initial tests on a new Medicaid claims
30-20    payment system before implementation and to perform subsequent
30-21    tests on the system before implementation of any future change to
30-22    the operation of the system.
30-23          SECTION 6.10.  (a)  Not later than January 1, 2000, the Texas
30-24    Department of Human Services shall develop a Medicaid eligibility
30-25    confirmation letter that is not easily duplicated.  The department
30-26    shall begin using the confirmation letter in place of the Medicaid
30-27    eligibility confirmation letter used on the effective date of this
 31-1    Act to reduce fraudulent use of duplicate letters to receive
 31-2    assistance under the state Medicaid program.  The confirmation
 31-3    letter developed under this subsection must be used until a
 31-4    permanent system for eligibility confirmation is implemented as
 31-5    required by this section.
 31-6          (b)  The Texas Department of Human Services shall identify
 31-7    and consider for implementation alternative methods, including
 31-8    electronic methods, to the method used by a recipient to prove
 31-9    eligibility under the state Medicaid program to a provider on the
31-10    effective date of this Act.  In identifying alternative methods,
31-11    the department shall consider the methods for proving eligibility
31-12    implemented by other states.
31-13          (c)  Not later than September 1, 2000, the Texas Department
31-14    of Human Services shall implement a permanent system for Medicaid
31-15    eligibility confirmation for use by a recipient to prove
31-16    eligibility under the state Medicaid program to a provider.  The
31-17    system must be designed to reduce the potential for fraudulent
31-18    claims of eligibility.
31-19          SECTION 6.11.  If before implementing any provision of this
31-20    Act a state agency determines that a waiver or authorization from a
31-21    federal agency is necessary for implementation of that provision,
31-22    the agency affected by the provision shall request the waiver or
31-23    authorization and may delay implementing that provision until the
31-24    waiver or authorization is granted.
31-25          SECTION 6.12.  This Act applies only to an administrative
31-26    penalty assessed for conduct that occurs on or after the effective
31-27    date of this Act.  An administrative penalty assessed for conduct
 32-1    that occurred before the effective date of this Act is governed by
 32-2    the law as it existed immediately before the effective date of this
 32-3    Act, and that law is continued in effect for that purpose.
 32-4          SECTION 6.13.  Article 1.65, Insurance Code, as added by this
 32-5    Act, applies only to a cause of action that accrues on or after the
 32-6    effective date of this Act.  A cause of action that accrues before
 32-7    that date is governed by the law as it existed immediately before
 32-8    the effective date of this Act, and that law is continued in effect
 32-9    for that purpose.
32-10                   ARTICLE 7.  EFFECTIVE DATE; EMERGENCY
32-11          SECTION 7.01.  This Act takes effect September 1, 1999.
32-12          SECTION 7.02.  The importance of this legislation and the
32-13    crowded condition of the calendars in both houses create an
32-14    emergency and an imperative public necessity that the
32-15    constitutional rule requiring bills to be read on three several
32-16    days in each house be suspended, and this rule is hereby suspended.