By: Nelson, et al. S.B. No. 746
 
  (Kolkhorst)
 
   
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to unlawful acts against and criminal offenses involving
  the Medicaid program.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 36.002, Human Resources Code, is amended
  to read as follows:
         Sec. 36.002.  UNLAWFUL ACTS.  A person commits an unlawful
  act if the person:
               (1)  knowingly makes or causes to be made a false
  statement or misrepresentation of a material fact to permit a
  person to receive a benefit or payment under the Medicaid program
  that is not authorized or that is greater than the benefit or
  payment that is authorized;
               (2)  knowingly conceals or fails to disclose
  information that permits a person to receive a benefit or payment
  under the Medicaid program that is not authorized or that is greater
  than the benefit or payment that is authorized;
               (3)  knowingly applies for and receives a benefit or
  payment on behalf of another person under the Medicaid program and
  converts any part of the benefit or payment to a use other than for
  the benefit of the person on whose behalf it was received;
               (4)  knowingly makes, causes to be made, induces, or
  seeks to induce the making of a false statement or
  misrepresentation of material fact concerning:
                     (A)  the conditions or operation of a facility in
  order that the facility may qualify for certification or
  recertification required by the Medicaid program, including
  certification or recertification as:
                           (i)  a hospital;
                           (ii)  a nursing facility or skilled nursing
  facility;
                           (iii)  a hospice;
                           (iv)  an intermediate care facility for the
  mentally retarded;
                           (v)  an assisted living facility; or
                           (vi)  a home health agency; or
                     (B)  information required to be provided by a
  federal or state law, rule, regulation, or provider agreement
  pertaining to the Medicaid program;
               (5)  except as authorized under the Medicaid program,
  knowingly pays, charges, solicits, accepts, or receives, in
  addition to an amount paid under the Medicaid program, a gift,
  money, a donation, or other consideration as a condition to the
  provision of a service or product or the continued provision of a
  service or product if the cost of the service or product is paid
  for, in whole or in part, under the Medicaid program;
               (6)  knowingly presents or causes to be presented a
  claim for payment under the Medicaid program for a product provided
  or a service rendered by a person who:
                     (A)  is not licensed to provide the product or
  render the service, if a license is required; or
                     (B)  is not licensed in the manner claimed;
               (7)  knowingly makes or causes to be made a claim under
  the Medicaid program for:
                     (A)  a service or product that has not been
  approved or acquiesced in by a treating physician or health care
  practitioner;
                     (B)  a service or product that is substantially
  inadequate or inappropriate when compared to generally recognized
  standards within the particular discipline or within the health
  care industry; or
                     (C)  a product that has been adulterated, debased,
  mislabeled, or that is otherwise inappropriate;
               (8)  makes a claim under the Medicaid program and
  knowingly fails to indicate the type of license and the
  identification number of the licensed health care provider who
  actually provided the service;
               (9)  conspires to commit a violation of Subdivision
  (1), (2), (3), (4), (5), (6), (7), (8), (10), (11), (12), or (13)
  [knowingly enters into an agreement, combination, or conspiracy to
  defraud the state by obtaining or aiding another person in
  obtaining an unauthorized payment or benefit from the Medicaid
  program or a fiscal agent];
               (10)  is a managed care organization that contracts
  with the Health and Human Services Commission or other state agency
  to provide or arrange to provide health care benefits or services to
  individuals eligible under the Medicaid program and knowingly:
                     (A)  fails to provide to an individual a health
  care benefit or service that the organization is required to
  provide under the contract;
                     (B)  fails to provide to the commission or
  appropriate state agency information required to be provided by
  law, commission or agency rule, or contractual provision; or
                     (C)  engages in a fraudulent activity in
  connection with the enrollment of an individual eligible under the
  Medicaid program in the organization's managed care plan or in
  connection with marketing the organization's services to an
  individual eligible under the Medicaid program;
               (11)  knowingly obstructs an investigation by the
  attorney general of an alleged unlawful act under this section;
               (12)  knowingly makes, uses, or causes the making or
  use of a false record or statement material to [conceal, avoid, or
  decrease] an obligation to pay or transmit money or property to this
  state under the Medicaid program, or knowingly conceals or
  knowingly and improperly avoids or decreases an obligation to pay
  or transmit money or property to this state under the Medicaid
  program; or
               (13)  knowingly engages in conduct that constitutes a
  violation under Section 32.039(b).
         SECTION 2.  Section 36.104, Human Resources Code, is amended
  by amending Subsection (b) and adding Subsection (b-1) to read as
  follows:
         (b)  If the state declines to take over the action, the
  person bringing the action may proceed without the state's
  participation.  A person proceeding under this subsection may
  recover for an unlawful act for a period of up to six years before
  the date the lawsuit was filed, or for a period beginning when the
  unlawful act occurred until up to three years from the date the
  state knows or reasonably should have known facts material to the
  unlawful act, whichever of these two periods is longer, regardless
  of whether the unlawful act occurred more than six years before the
  date the lawsuit was filed. Notwithstanding the preceding
  sentence, in no event shall a person proceeding under this
  subsection recover for an unlawful act that occurred more than 10
  years before the date the lawsuit was filed.
         (b-1)  On request by the state, the state is entitled to be
  served with copies of all pleadings filed in the action and be
  provided at the state's expense with copies of all deposition
  transcripts.  If the person bringing the action proceeds without
  the state's participation, the court, without limiting the status
  and right of that person, may permit the state to intervene at a
  later date on a showing of good cause.
         SECTION 3.  Subsections (b) and (c), Section 36.110, Human
  Resources Code, are amended to read as follows:
         (b)  If the court finds that the action is based primarily on
  disclosures of specific information, other than information
  provided by the person bringing the action, relating to allegations
  or transactions in a Texas or federal criminal or civil hearing, in
  a Texas or federal legislative or administrative report, hearing,
  audit, or investigation, or from the news media, the court may award
  the amount the court considers appropriate but not more than 10
  [seven] percent of the proceeds of the action. The court shall
  consider the significance of the information and the role of the
  person bringing the action in advancing the case to litigation.
         (c)  A payment to a person under this section shall be made
  from the proceeds of the action. A person receiving a payment under
  this section is also entitled to receive from the defendant an
  amount for reasonable expenses, reasonable attorney's fees, and
  costs that the court finds to have been necessarily incurred. The
  court's determination of expenses, fees, and costs to be awarded
  under this subsection shall be made only after the defendant has
  been found liable in the action or the claim is settled [state
  settles an action with a defendant that the court determined, after
  a hearing, was fair, adequate, and reasonable in accordance with
  Section 36.107(c)].
         SECTION 4.  Subsection (b), Section 36.113, Human Resources
  Code, is amended to read as follows:
         (b)  The court shall dismiss [A person may not bring] an
  action or claim under this subchapter, unless opposed by the
  attorney general, if substantially the same [that is based on the
  public disclosure of] allegations or transactions as alleged in the
  action or claim were publicly disclosed in a Texas or federal
  criminal or civil hearing in which the state or an agent of the
  state is a party, in a Texas legislative or administrative report,
  or other Texas hearing, audit, or investigation, or from the news
  media, unless the person bringing the action is an original source
  of the information. In this subsection, "original source" means an
  individual who:
               (1)  prior to a public disclosure under this
  subsection, has voluntarily disclosed to the state the information
  on which allegations or transactions in a claim are based [has
  direct and independent knowledge of the information on which the
  allegations are based and has voluntarily provided the information
  to the state before filing an action under this subchapter that is
  based on the information]; or
               (2)  has knowledge that is independent of and
  materially adds to the publicly disclosed allegation or
  transactions [allegations] and who has voluntarily provided the
  information to the state before filing an action under this
  subchapter [that is based on the information].
         SECTION 5.  Section 36.115, Human Resources Code, is amended
  by amending Subsection (a) and adding Subsection (c) to read as
  follows:
         (a)  A person, including an employee, contractor, or agent,
  who is discharged, demoted, suspended, threatened, harassed, or in
  any other manner discriminated against in the terms and conditions
  of employment because of a lawful act taken by the person or
  associated others in furtherance of an action under this
  subchapter, including investigation for, initiation of, testimony
  for, or assistance in an action filed or to be filed under this
  subchapter, or other efforts taken by the person to stop one or more
  violations of Section 36.002 is entitled to:
               (1)  reinstatement with the same seniority status the
  person would have had but for the discrimination; and
               (2)  not less than two times the amount of back pay,
  interest on the back pay, and compensation for any special damages
  sustained as a result of the discrimination, including litigation
  costs and reasonable attorney's fees.
         (c)  A person must bring suit on an action under this section
  not later than the third anniversary of the date on which the cause
  of action accrues. For purposes of this section, the cause of
  action accrues on the date the retaliation occurs.
         SECTION 6.  Subsection (c), Section 36.113, Human Resources
  Code, is repealed.
         SECTION 7.  The changes in law made by this Act to Section
  36.002, Human Resources Code, apply only to conduct that occurs on
  or after the effective date of this Act. Conduct that occurs before
  the effective date of this Act is governed by the law in effect at
  the time the conduct occurred, and that law is continued in effect
  for that purpose.
         SECTION 8.  The changes in law made by this Act to Sections
  36.110 and 36.113, Human Resources Code, apply only to a civil
  action for a violation of Section 36.002, Human Resources Code, as
  amended by this Act, commenced on or after the effective date of
  this Act. A civil action commenced before the effective date of
  this Act is governed by the law in effect immediately before the
  effective date of this Act, and that law is continued in effect for
  that purpose.
         SECTION 9.  The changes in law made by this Act to Section
  36.115, Human Resources Code, apply only to a cause of action that
  accrues on or after the effective date of this Act. A cause of
  action that accrued before the effective date of this Act is
  governed by the law applicable to the cause of action immediately
  before the effective date of this Act, and that law is continued in
  effect for that purpose.
         SECTION 10.  This Act takes effect September 1, 2013.