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AN ACT
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relating to unlawful acts against and criminal offenses involving |
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the Medicaid program; providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 36.001, Human Resources Code, is amended |
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by adding Subdivisions (5-a) and (7-a) to read as follows: |
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(5-a) "Material" means having a natural tendency to |
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influence or to be capable of influencing. |
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(7-a) "Obligation" means a duty, whether or not fixed, |
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that arises from: |
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(A) an express or implied contractual, |
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grantor-grantee, or licensor-licensee relationship; |
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(B) a fee-based or similar relationship; |
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(C) a statute or regulation; or |
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(D) the retention of any overpayment. |
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SECTION 2. Section 36.002, Human Resources Code, is amended |
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to read as follows: |
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Sec. 36.002. UNLAWFUL ACTS. A person commits an unlawful |
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act if the person: |
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(1) knowingly makes or causes to be made a false |
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statement or misrepresentation of a material fact to permit a |
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person to receive a benefit or payment under the Medicaid program |
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that is not authorized or that is greater than the benefit or |
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payment that is authorized; |
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(2) knowingly conceals or fails to disclose |
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information that permits a person to receive a benefit or payment |
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under the Medicaid program that is not authorized or that is greater |
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than the benefit or payment that is authorized; |
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(3) knowingly applies for and receives a benefit or |
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payment on behalf of another person under the Medicaid program and |
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converts any part of the benefit or payment to a use other than for |
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the benefit of the person on whose behalf it was received; |
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(4) knowingly makes, causes to be made, induces, or |
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seeks to induce the making of a false statement or |
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misrepresentation of material fact concerning: |
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(A) the conditions or operation of a facility in |
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order that the facility may qualify for certification or |
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recertification required by the Medicaid program, including |
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certification or recertification as: |
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(i) a hospital; |
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(ii) a nursing facility or skilled nursing |
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facility; |
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(iii) a hospice; |
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(iv) an intermediate care facility for the |
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mentally retarded; |
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(v) an assisted living facility; or |
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(vi) a home health agency; or |
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(B) information required to be provided by a |
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federal or state law, rule, regulation, or provider agreement |
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pertaining to the Medicaid program; |
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(5) except as authorized under the Medicaid program, |
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knowingly pays, charges, solicits, accepts, or receives, in |
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addition to an amount paid under the Medicaid program, a gift, |
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money, a donation, or other consideration as a condition to the |
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provision of a service or product or the continued provision of a |
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service or product if the cost of the service or product is paid |
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for, in whole or in part, under the Medicaid program; |
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(6) knowingly presents or causes to be presented a |
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claim for payment under the Medicaid program for a product provided |
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or a service rendered by a person who: |
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(A) is not licensed to provide the product or |
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render the service, if a license is required; or |
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(B) is not licensed in the manner claimed; |
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(7) knowingly makes or causes to be made a claim under |
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the Medicaid program for: |
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(A) a service or product that has not been |
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approved or acquiesced in by a treating physician or health care |
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practitioner; |
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(B) a service or product that is substantially |
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inadequate or inappropriate when compared to generally recognized |
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standards within the particular discipline or within the health |
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care industry; or |
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(C) a product that has been adulterated, debased, |
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mislabeled, or that is otherwise inappropriate; |
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(8) makes a claim under the Medicaid program and |
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knowingly fails to indicate the type of license and the |
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identification number of the licensed health care provider who |
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actually provided the service; |
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(9) knowingly enters into an agreement, combination, |
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or conspiracy to defraud the state by obtaining or aiding another |
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person in obtaining an unauthorized payment or benefit from the |
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Medicaid program or a fiscal agent; |
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(10) is a managed care organization that contracts |
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with the Health and Human Services Commission or other state agency |
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to provide or arrange to provide health care benefits or services to |
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individuals eligible under the Medicaid program and knowingly: |
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(A) fails to provide to an individual a health |
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care benefit or service that the organization is required to |
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provide under the contract; |
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(B) fails to provide to the commission or |
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appropriate state agency information required to be provided by |
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law, commission or agency rule, or contractual provision; or |
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(C) engages in a fraudulent activity in |
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connection with the enrollment of an individual eligible under the |
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Medicaid program in the organization's managed care plan or in |
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connection with marketing the organization's services to an |
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individual eligible under the Medicaid program; |
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(11) knowingly obstructs an investigation by the |
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attorney general of an alleged unlawful act under this section; |
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(12) knowingly makes, uses, or causes the making or |
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use of a false record or statement to conceal, avoid, or decrease an |
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obligation to pay or transmit money or property to this state under |
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the Medicaid program; or |
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(13) knowingly engages in conduct that constitutes a |
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violation under Section 32.039(b). |
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SECTION 3. Subsection (a), Section 36.052, Human Resources |
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Code, is amended to read as follows: |
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(a) Except as provided by Subsection (c), a person who |
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commits an unlawful act is liable to the state for: |
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(1) the amount of any payment or the value of any |
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monetary or in-kind benefit provided under the Medicaid program, |
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directly or indirectly, as a result of the unlawful act, including |
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any payment made to a third party; |
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(2) interest on the amount of the payment or the value |
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of the benefit described by Subdivision (1) at the prejudgment |
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interest rate in effect on the day the payment or benefit was |
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received or paid, for the period from the date the benefit was |
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received or paid to the date that the state recovers the amount of |
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the payment or value of the benefit; |
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(3) a civil penalty of: |
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(A) not less than $5,500 or the minimum amount |
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imposed as provided by 31 U.S.C. Section 3729(a), if that amount |
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exceeds $5,500, and not [$5,000 or] more than $15,000 or the maximum |
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amount imposed as provided by 31 U.S.C. Section 3729(a), if that |
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amount exceeds $15,000, for each unlawful act committed by the |
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person that results in injury to an elderly person, as defined by |
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Section 48.002(a)(1), a disabled person, as defined by Section |
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48.002(a)(8)(A), or a person younger than 18 years of age; or |
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(B) not less than $5,500 or the minimum amount |
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imposed as provided by 31 U.S.C. Section 3729(a), if that amount |
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exceeds $5,500, and not [$5,000 or] more than $11,000 or the maximum |
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amount imposed as provided by 31 U.S.C. Section 3729(a), if that |
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amount exceeds $11,000, [$10,000] for each unlawful act committed |
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by the person that does not result in injury to a person described |
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by Paragraph (A); and |
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(4) two times the amount of the payment or the value of |
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the benefit described by Subdivision (1). |
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SECTION 4. Subsection (c), Section 36.110, Human Resources |
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Code, is amended to read as follows: |
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(c) A payment to a person under this section shall be made |
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from the proceeds of the action. A person receiving a payment |
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under this section is also entitled to receive from the defendant an |
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amount for reasonable expenses, reasonable attorney's fees, and |
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costs that the court finds to have been necessarily incurred. The |
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court's determination of expenses, fees, and costs to be awarded |
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under this subsection shall be made only after the defendant has |
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been found liable in the action or the state settles an action with |
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a defendant that the court determined, after a hearing, was fair, |
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adequate, and reasonable in accordance with Section 36.107(c). |
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SECTION 5. Section 36.113, Human Resources Code, is amended |
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by amending Subsection (b) and adding Subsection (c) to read as |
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follows: |
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(b) A person may not bring an action under this subchapter |
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that is based on the public disclosure of allegations or |
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transactions in a criminal or civil hearing in which the state or an |
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agent of the state is a party, in a legislative or administrative |
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report, hearing, audit, or investigation, or from the news media, |
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unless the person bringing the action is an original source of the |
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information. In this subsection, "original source" means an |
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individual who: |
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(1) has direct and independent knowledge of the |
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information on which the allegations are based and has voluntarily |
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provided the information to the state before filing an action under |
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this subchapter that is based on the information; or |
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(2) has knowledge that is independent of and |
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materially adds to the publicly disclosed allegations and who has |
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voluntarily provided the information to the state before filing an |
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action under this subchapter that is based on the information. |
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(c) Before dismissing an action as barred under this |
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section, the court shall give the attorney general an opportunity |
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to oppose the dismissal. |
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SECTION 6. The heading to Section 36.115, Human Resources |
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Code, is amended to read as follows: |
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Sec. 36.115. RETALIATION [BY EMPLOYER] AGAINST PERSON |
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[BRINGING SUIT] PROHIBITED. |
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SECTION 7. Subsection (a), Section 36.115, Human Resources |
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Code, is amended to read as follows: |
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(a) A person, including an employee, contractor, or agent, |
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who is discharged, demoted, suspended, threatened, harassed, or in |
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any other manner discriminated against in the terms and conditions |
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of employment [by the person's employer] because of a lawful act |
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taken by the person in furtherance of an action under this |
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subchapter, including investigation for, initiation of, testimony |
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for, or assistance in an action filed or to be filed under this |
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subchapter, or other efforts taken by the person to stop one or more |
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violations of Section 36.002 is entitled to: |
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(1) reinstatement with the same seniority status the |
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person would have had but for the discrimination; and |
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(2) not less than two times the amount of back pay, |
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interest on the back pay, and compensation for any special damages |
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sustained as a result of the discrimination, including litigation |
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costs and reasonable attorney's fees. |
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SECTION 8. Subsection (a), Section 35A.02, Penal Code, is |
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amended to read as follows: |
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(a) A person commits an offense if the person: |
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(1) knowingly makes or causes to be made a false |
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statement or misrepresentation of a material fact to permit a |
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person to receive a benefit or payment under the Medicaid program |
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that is not authorized or that is greater than the benefit or |
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payment that is authorized; |
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(2) knowingly conceals or fails to disclose |
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information that permits a person to receive a benefit or payment |
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under the Medicaid program that is not authorized or that is greater |
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than the benefit or payment that is authorized; |
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(3) knowingly applies for and receives a benefit or |
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payment on behalf of another person under the Medicaid program and |
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converts any part of the benefit or payment to a use other than for |
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the benefit of the person on whose behalf it was received; |
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(4) knowingly makes, causes to be made, induces, or |
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seeks to induce the making of a false statement or |
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misrepresentation of material fact concerning: |
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(A) the conditions or operation of a facility in |
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|
order that the facility may qualify for certification or |
|
|
recertification required by the Medicaid program, including |
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|
certification or recertification as: |
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|
(i) a hospital; |
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(ii) a nursing facility or skilled nursing |
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|
facility; |
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(iii) a hospice; |
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(iv) an intermediate care facility for the |
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mentally retarded; |
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(v) an assisted living facility; or |
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(vi) a home health agency; or |
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(B) information required to be provided by a |
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federal or state law, rule, regulation, or provider agreement |
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pertaining to the Medicaid program; |
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(5) except as authorized under the Medicaid program, |
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knowingly pays, charges, solicits, accepts, or receives, in |
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addition to an amount paid under the Medicaid program, a gift, |
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money, a donation, or other consideration as a condition to the |
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|
provision of a service or product or the continued provision of a |
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service or product if the cost of the service or product is paid |
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for, in whole or in part, under the Medicaid program; |
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(6) knowingly presents or causes to be presented a |
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claim for payment under the Medicaid program for a product provided |
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or a service rendered by a person who: |
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(A) is not licensed to provide the product or |
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render the service, if a license is required; or |
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(B) is not licensed in the manner claimed; |
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(7) knowingly makes or causes to be made a claim under |
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the Medicaid program for: |
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(A) a service or product that has not been |
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approved or acquiesced in by a treating physician or health care |
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practitioner; |
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(B) a service or product that is substantially |
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|
inadequate or inappropriate when compared to generally recognized |
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|
standards within the particular discipline or within the health |
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care industry; or |
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(C) a product that has been adulterated, debased, |
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mislabeled, or that is otherwise inappropriate; |
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(8) makes a claim under the Medicaid program and |
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knowingly fails to indicate the type of license and the |
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identification number of the licensed health care provider who |
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actually provided the service; |
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(9) knowingly enters into an agreement, combination, |
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or conspiracy to defraud the state by obtaining or aiding another |
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person in obtaining an unauthorized payment or benefit from the |
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Medicaid program or a fiscal agent; |
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(10) is a managed care organization that contracts |
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with the Health and Human Services Commission or other state agency |
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to provide or arrange to provide health care benefits or services to |
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individuals eligible under the Medicaid program and knowingly: |
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(A) fails to provide to an individual a health |
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care benefit or service that the organization is required to |
|
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provide under the contract; |
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(B) fails to provide to the commission or |
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appropriate state agency information required to be provided by |
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law, commission or agency rule, or contractual provision; or |
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(C) engages in a fraudulent activity in |
|
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connection with the enrollment of an individual eligible under the |
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Medicaid program in the organization's managed care plan or in |
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connection with marketing the organization's services to an |
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individual eligible under the Medicaid program; |
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(11) knowingly obstructs an investigation by the |
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attorney general of an alleged unlawful act under this section or |
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under Section 32.039, 32.0391, or 36.002, Human Resources Code; or |
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(12) knowingly makes, uses, or causes the making or |
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use of a false record or statement to conceal, avoid, or decrease an |
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obligation to pay or transmit money or property to this state under |
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the Medicaid program. |
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SECTION 9. (a) The changes in law made by this Act to |
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Section 36.002, Human Resources Code, and Section 35A.02, Penal |
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Code, apply only to conduct that occurs on or after the effective |
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date of this Act. Conduct that occurs before the effective date of |
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this Act is governed by the law in effect at the time the conduct |
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occurred, and that law is continued in effect for that purpose. |
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(b) For purposes of this section, conduct constituting an |
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offense under the penal law of this state occurred before the |
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effective date of this Act if any element of the offense occurred |
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before that date. |
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SECTION 10. The changes in law made by this Act to Sections |
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36.052, 36.110, and 36.113, Human Resources Code, apply only to a |
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civil action for a violation of Section 36.002, Human Resources |
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Code, as amended by this Act, commenced on or after the effective |
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date of this Act. A civil action commenced before the effective |
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date of this Act is governed by the law in effect immediately before |
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the effective date of this Act, and that law is continued in effect |
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for that purpose. |
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SECTION 11. This Act takes effect September 1, 2011. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I hereby certify that S.B. No. 544 passed the Senate on |
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March 30, 2011, by the following vote: Yeas 31, Nays 0; and that |
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the Senate concurred in House amendment on May 23, 2011, by the |
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following vote: Yeas 30, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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I hereby certify that S.B. No. 544 passed the House, with |
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amendment, on May 18, 2011, by the following vote: Yeas 129, |
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Nays 0, two present not voting. |
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______________________________ |
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Chief Clerk of the House |
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Approved: |
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______________________________ |
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Date |
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______________________________ |
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Governor |