81R10322 GCB-F
 
  By: Nichols S.B. No. 1432
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the investigation, prosecution, and punishment of
  criminal Medicaid fraud and certain other offenses related to
  Medicaid fraud; providing penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 242.002(4), Health and Safety Code, is
  amended to read as follows:
               (4)  "Department" means the [Texas] Department of Aging
  and Disability [Human] Services.
         SECTION 2.  Sections 22.04(a-1), (b), (d), (f), and (g),
  Penal Code, are amended to read as follows:
         (a-1)  A person commits an offense if the person is an owner,
  operator, or employee of a group home, nursing facility, assisted
  living facility, intermediate care facility for persons with mental
  retardation, or other institutional care facility and the person
  intentionally, knowingly, recklessly, or with criminal negligence
  by omission causes to a child, elderly individual, or disabled
  individual who is a resident of that group home or facility:
               (1)  serious bodily injury;
               (2)  serious mental deficiency, impairment, or injury;
  or
               (3)  bodily injury[; or
               [(4)  exploitation].
         (b)  An omission that causes a condition described by
  Subsection (a)(1), (2), or (3) or (a-1)(1), (2), or (3)[, or (4)] is
  conduct constituting an offense under this section if:
               (1)  the actor has a legal or statutory duty to act; or
               (2)  the actor has assumed care, custody, or control of
  a child, elderly individual, or disabled individual.
         (d)  For purposes of an omission that causes a condition
  described by Subsection (a)(1), (2), or (3), the actor has assumed
  care, custody, or control if he has by act, words, or course of
  conduct acted so as to cause a reasonable person to conclude that he
  has accepted responsibility for protection, food, shelter, and
  medical care for a child, elderly individual, or disabled
  individual.  For purposes of an omission that causes a condition
  described by Subsection (a-1)(1), (2), or (3), [or (4),] the actor
  acting during the actor's capacity as owner, operator, or employee
  of a group home or facility described by Subsection (a-1) is
  considered to have accepted responsibility for protection, food,
  shelter, and medical care for the child, elderly individual, or
  disabled individual who is a resident of the group home or facility.
         (f)  An offense under Subsection (a)(3) or (a-1)(3) [or (4)]
  is a felony of the third degree when the conduct is committed
  intentionally or knowingly.  When the conduct is engaged in
  recklessly, the offense is a state jail felony.
         (g)  An offense under Subsection (a) is a state jail felony
  when the person acts with criminal negligence.  An offense under
  Subsection (a-1) is a state jail felony when the person, with
  criminal negligence and by omission, causes a condition described
  by Subsection (a-1)(1), (2), or (3)[, or (4)].
         SECTION 3.  Section 32.46(d), Penal Code, is amended to read
  as follows:
         (d)  In this section:
               (1)  "Deception" [, "deception"] has the meaning
  assigned by Section 31.01.
               (2)  "Document" includes electronically stored data or
  other information that is retrievable in a readable, perceivable
  form.
         SECTION 4.  Subchapter D, Chapter 32, Penal Code, is amended
  by adding Section 32.53 to read as follows:
         Sec. 32.53.  EXPLOITATION OF CHILD, ELDERLY INDIVIDUAL, OR
  DISABLED INDIVIDUAL. (a) In this section:
               (1)  "Child," "elderly individual," and "disabled
  individual" have the meanings assigned by Section 22.04.
               (2)  "Exploitation" means the illegal or improper use
  of an individual or of the resources of the individual for monetary
  or personal benefit, profit, or gain.
         (b)  A person commits an offense if the person intentionally,
  knowingly, or recklessly causes the exploitation of a child,
  elderly individual, or disabled individual.
         (c)  An offense under this section is a felony of the third
  degree.
         (d)  A person who is subject to prosecution under both this
  section and another section of this code may be prosecuted under
  either or both sections. Section 3.04 does not apply to criminal
  episodes prosecuted under both this section and another section of
  this code. If a criminal episode is prosecuted under both this
  section and another section of this code and sentences are assessed
  for convictions under both sections, the sentences shall run
  concurrently.
         SECTION 5.  Section 35A.01, Penal Code, is amended by adding
  Subdivision (10) to read as follows:
               (10)  "High managerial agent" means a director,
  officer, or employee who is authorized to act on behalf of a
  provider and has duties of such responsibility that the conduct of
  the director, officer, or employee reasonably may be assumed to
  represent the policy or intent of the provider.
         SECTION 6.  Section 35A.02, Penal Code, is amended by
  amending Subsection (c) and adding Subsection (e) to read as
  follows:
         (c)  If conduct constituting an offense under this section
  also constitutes an offense under another section of this code or
  another provision of law, the actor may be prosecuted under either
  this section or the other section or provision or both this section
  and the other section or provision.
         (e)  The punishment prescribed for an offense under this
  section is increased to the punishment prescribed for the next
  highest category of offense if it is shown beyond a reasonable doubt
  on the trial of the offense that the actor was a provider or high
  managerial agent at the time of the offense.
         SECTION 7.  Section 71.02(a), Penal Code, is amended to read
  as follows:
         (a)  A person commits an offense if, with the intent to
  establish, maintain, or participate in a combination or in the
  profits of a combination or as a member of a criminal street gang,
  he commits or conspires to commit one or more of the following:
               (1)  murder, capital murder, arson, aggravated
  robbery, robbery, burglary, theft, aggravated kidnapping,
  kidnapping, aggravated assault, aggravated sexual assault, sexual
  assault, forgery, deadly conduct, assault punishable as a Class A
  misdemeanor, burglary of a motor vehicle, or unauthorized use of a
  motor vehicle;
               (2)  any gambling offense punishable as a Class A
  misdemeanor;
               (3)  promotion of prostitution, aggravated promotion
  of prostitution, or compelling prostitution;
               (4)  unlawful manufacture, transportation, repair, or
  sale of firearms or prohibited weapons;
               (5)  unlawful manufacture, delivery, dispensation, or
  distribution of a controlled substance or dangerous drug, or
  unlawful possession of a controlled substance or dangerous drug
  through forgery, fraud, misrepresentation, or deception;
               (6)  any unlawful wholesale promotion or possession of
  any obscene material or obscene device with the intent to wholesale
  promote the same;
               (7)  any offense under Subchapter B, Chapter 43,
  depicting or involving conduct by or directed toward a child
  younger than 18 years of age;
               (8)  any felony offense under Chapter 32;
               (9)  any offense under Chapter 36;
               (10)  any offense under Chapter 34, [or] 35, or 35A;
               (11)  any offense under Section 37.11(a);
               (12)  any offense under Chapter 20A; or
               (13)  any offense under Section 37.10.
         SECTION 8.  Section 22.04(c)(4), Penal Code, is repealed.
         SECTION 9.  The change in law made by this Act applies only
  to an offense committed on or after the effective date of this Act.
  An offense committed before the effective date of this Act is
  covered by the law in effect when the offense was committed, and the
  former law is continued in effect for that purpose. For purposes of
  this section, an offense was committed before the effective date of
  this Act if any element of the offense occurred before that date.
         SECTION 10.  This Act takes effect September 1, 2009.