|
|
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. |