84R5757 EES-D
 
  By: Hinojosa, et al. S.B. No. 207
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the authority and duties of the office of inspector
  general of the Health and Human Services Commission.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 531.1011(4), Government Code, is amended
  to read as follows:
               (4)  "Fraud" means an intentional deception or
  misrepresentation made by a person with the knowledge that the
  deception could result in some unauthorized benefit to that person
  or some other person[, including any act that constitutes fraud
  under applicable federal or state law]. The term does not include
  unintentional technical, clerical, or administrative errors.
         SECTION 2.  Section 531.102, Government Code, is amended by
  amending Subsections (a-1), (f), (g), and (k) and adding
  Subsections (f-1), (p), (q), and (r) to read as follows:
         (a-1)  The executive commissioner [governor] shall appoint
  an inspector general to serve as director of the office. The
  inspector general serves a one-year term that expires on February
  1.
         (f)(1)  If the commission receives a complaint or allegation
  of Medicaid fraud or abuse from any source, the office must conduct
  a preliminary investigation as provided by Section 531.118(c) to
  determine whether there is a sufficient basis to warrant a full
  investigation.  A preliminary investigation must begin not later
  than the 30th day, and be completed not later than the 45th day,
  after the date the commission receives a complaint or allegation or
  has reason to believe that fraud or abuse has occurred.  [A
  preliminary investigation shall be completed not later than the
  90th day after it began.]
               (2)  If the findings of a preliminary investigation
  give the office reason to believe that an incident of fraud or abuse
  involving possible criminal conduct has occurred in the Medicaid
  program, the office must take the following action, as appropriate,
  not later than the 30th day after the completion of the preliminary
  investigation:
                     (A)  if a provider is suspected of fraud or abuse
  involving criminal conduct, the office must refer the case to the
  state's Medicaid fraud control unit, provided that the criminal
  referral does not preclude the office from continuing its
  investigation of the provider, which investigation may lead to the
  imposition of appropriate administrative or civil sanctions; or
                     (B)  if there is reason to believe that a
  recipient has defrauded the Medicaid program, the office may
  conduct a full investigation of the suspected fraud, subject to
  Section 531.118(c).
         (f-1)  The office shall complete a full investigation of a
  complaint or allegation of Medicaid fraud or abuse against a
  provider not later than the 180th day after the date the full
  investigation begins unless the office determines that more time is
  needed to complete the investigation. Except as otherwise provided
  by this subsection, if the office determines that more time is
  needed to complete the investigation, the office shall provide
  notice to the provider who is the subject of the investigation
  stating that the length of the investigation will exceed 180 days
  and specifying the reasons why the office was unable to complete the
  investigation within the 180-day period.  The office is not
  required to provide notice to the provider under this subsection if
  the office determines that providing notice would jeopardize the
  investigation. 
         (g)(1)  Whenever the office learns or has reason to suspect
  that a provider's records are being withheld, concealed, destroyed,
  fabricated, or in any way falsified, the office shall immediately
  refer the case to the state's Medicaid fraud control
  unit.  However, such criminal referral does not preclude the office
  from continuing its investigation of the provider, which
  investigation may lead to the imposition of appropriate
  administrative or civil sanctions.
               (2)  As [In addition to other instances] authorized
  under state and [or] federal law, and except as provided by
  Subdivisions (8) and (9), the office shall impose without prior
  notice a payment hold on claims for reimbursement submitted by a
  provider only to compel production of records, when requested by
  the state's Medicaid fraud control unit, or on the determination
  that a credible allegation of fraud exists, subject to Subsections
  (l) and (m), as applicable.  The payment hold is a serious
  enforcement tool that the office imposes to mitigate ongoing
  financial risk to the state. A payment hold imposed under this
  subdivision takes immediate effect. The office must notify the
  provider of the payment hold in accordance with 42 C.F.R. Section
  455.23(b) and, except as provided by that regulation, not later
  than the fifth day after the date the office imposes the payment
  hold.  In addition to the requirements of 42 C.F.R. Section
  455.23(b), the notice of payment hold provided under this
  subdivision must also include:
                     (A)  the specific basis for the hold, including
  identification of the claims supporting the allegation at that
  point in the investigation, [and] a representative sample of any
  documents that form the basis for the hold, and a detailed summary
  of the office's evidence relating to the allegation; [and]
                     (B)  a description of administrative and judicial
  due process rights and remedies, including the provider's option 
  [right] to seek informal resolution, the provider's right to seek a
  formal administrative appeal hearing, or that the provider may seek 
  both; and
                     (C)  a detailed timeline for the provider to
  pursue the rights and remedies described in Paragraph (B).
               (3)  On timely written request by a provider subject to
  a payment hold under Subdivision (2), other than a hold requested by
  the state's Medicaid fraud control unit, the office shall file a
  request with the State Office of Administrative Hearings for an
  expedited administrative hearing regarding the hold not later than
  the third day after the date the office receives the provider's
  request. The provider must request an expedited administrative
  hearing under this subdivision not later than the 10th [30th] day
  after the date the provider receives notice from the office under
  Subdivision (2).  The State Office of Administrative Hearings
  shall hold the expedited administrative hearing not later than the
  45th day after the date the State Office of Administrative Hearings
  receives the request for the hearing. In a hearing held under this
  subdivision [Unless otherwise determined by the administrative law
  judge for good cause at an expedited administrative hearing, the
  state and the provider shall each be responsible for]:
                     (A)  the provider and the office are each limited
  to four hours of testimony, excluding time for responding to
  questions from the administrative law judge [one-half of the costs
  charged by the State Office of Administrative Hearings];
                     (B)  the provider and the office are each entitled
  to two continuances under reasonable circumstances [one-half of the
  costs for transcribing the hearing]; and
                     (C)  the office is required to show probable cause
  that the credible allegation of fraud that is the basis of the
  payment hold has an indicia of reliability and that continuing to
  pay the provider presents an ongoing significant financial risk to
  the state and a threat to the integrity of the Medicaid program [the
  party's own costs related to the hearing, including the costs
  associated with preparation for the hearing, discovery,
  depositions, and subpoenas, service of process and witness
  expenses, travel expenses, and investigation expenses; and
                     [(D)   all other costs associated with the hearing
  that are incurred by the party, including attorney's fees].
               (4)  The office is responsible for the costs of a
  hearing held under Subdivision (3), but a provider is responsible
  for the provider's own costs incurred in preparing for the hearing
  [executive commissioner and the State Office of Administrative
  Hearings shall jointly adopt rules that require a provider, before
  an expedited administrative hearing, to advance security for the
  costs for which the provider is responsible under that
  subdivision].
               (5)  In a hearing held under Subdivision (3), the
  administrative law judge shall decide if the payment hold should
  continue but may not adjust the amount or percent of the payment
  hold. The decision of the administrative law judge is final and may
  not be appealed [Following an expedited administrative hearing
  under Subdivision (3), a provider subject to a payment hold, other
  than a hold requested by the state's Medicaid fraud control unit,
  may appeal a final administrative order by filing a petition for
  judicial review in a district court in Travis County].
               (6)  The executive commissioner shall adopt rules that
  allow a provider subject to a payment hold under Subdivision (2),
  other than a hold requested by the state's Medicaid fraud control
  unit, to seek an informal resolution of the issues identified by the
  office in the notice provided under that subdivision.  A provider
  must request an initial informal resolution meeting under this
  subdivision not later than the deadline prescribed by Subdivision
  (3) for requesting an expedited administrative hearing.  On
  receipt of a timely request, the office shall decide whether to
  grant the provider's request for an initial informal resolution
  meeting, and if the office decides to grant the request, the office
  shall schedule the [an] initial informal resolution meeting [not
  later than the 60th day after the date the office receives the
  request, but the office shall schedule the meeting on a later date,
  as determined by the office, if requested by the provider].  The
  office shall give notice to the provider of the time and place of
  the initial informal resolution meeting [not later than the 30th
  day before the date the meeting is to be held].  A provider may
  request a second informal resolution meeting [not later than the
  20th day] after the date of the initial informal resolution
  meeting.  On receipt of a timely request, the office shall decide
  whether to grant the provider's request for a second informal
  resolution meeting, and if the office decides to grant the request,
  the office shall schedule the [a] second informal resolution
  meeting [not later than the 45th day after the date the office
  receives the request, but the office shall schedule the meeting on a
  later date, as determined by the office, if requested by the
  provider].  The office shall give notice to the provider of the
  time and place of the second informal resolution meeting [not later
  than the 20th day before the date the meeting is to be held].  A
  provider must have an opportunity to provide additional information
  before the second informal resolution meeting for consideration by
  the office.  A provider's decision to seek an informal resolution
  under this subdivision does not extend the time by which the
  provider must request an expedited administrative hearing under
  Subdivision (3).  The informal resolution process shall run
  concurrently with the administrative hearing process, and the
  informal resolution process shall be discontinued once the State
  Office of Administrative Hearings issues a final determination on
  the payment hold. [However, a hearing initiated under Subdivision
  (3) shall be stayed until the informal resolution process is
  completed.]
               (7)  The office shall, in consultation with the state's
  Medicaid fraud control unit, establish guidelines under which
  payment holds or program exclusions:
                     (A)  may permissively be imposed on a provider; or
                     (B)  shall automatically be imposed on a provider.
               (8)  In accordance with 42 C.F.R. Sections 455.23(e)
  and (f), on the determination that a credible allegation of fraud
  exists, the office may find that good cause exists to not impose a
  payment hold, to not continue a payment hold, to impose a payment
  hold only in part, or to convert a payment hold imposed in whole to
  one imposed only in part, if any of the following are applicable:
                     (A)  law enforcement officials have specifically
  requested that a payment hold not be imposed because a payment hold
  would compromise or jeopardize an investigation;
                     (B)  available remedies implemented by the state
  other than a payment hold would more effectively or quickly protect
  Medicaid funds;
                     (C)  the office determines, based on the
  submission of written evidence by the provider who is the subject of
  the payment hold, that the payment hold should be removed;
                     (D)  Medicaid recipients' access to items or
  services would be jeopardized by a full or partial payment hold
  because the provider who is the subject of the payment hold:
                           (i)  is the sole community physician or the
  sole source of essential specialized services in a community; or 
                           (ii)  serves a large number of Medicaid
  recipients within a designated medically underserved area;
                     (E)  the attorney general declines to certify that
  a matter continues to be under investigation; or 
                     (F)  the office determines that a full or partial
  payment hold is not in the best interests of the Medicaid program. 
               (9)  The office may not impose a payment hold on claims
  for reimbursement submitted by a provider for medically necessary
  services for which the provider has obtained prior authorization
  from the commission or a contractor of the commission unless the
  office has evidence that the provider has materially misrepresented
  documentation relating to those services. 
         (k)  A final report on an audit or investigation is subject
  to required disclosure under Chapter 552.  All information and
  materials compiled during the audit or investigation remain
  confidential and not subject to required disclosure in accordance
  with Section 531.1021(g). A confidential draft report on an audit
  or investigation that concerns the death of a child may be shared
  with the Department of Family and Protective Services. A draft
  report that is shared with the Department of Family and Protective
  Services remains confidential and is not subject to disclosure
  under Chapter 552. 
         (p)  The executive commissioner, on behalf of the office,
  shall adopt rules establishing criteria: 
               (1)  for opening a case;
               (2)  for prioritizing cases for the efficient
  management of the office's workload, including rules that direct
  the office to prioritize:
                     (A)  provider cases according to the highest
  potential for recovery or risk to the state as indicated through the
  provider's volume of billings, the provider's history of
  noncompliance with the law, and identified fraud trends;
                     (B)  recipient cases according to the highest
  potential for recovery and federal timeliness requirements; and
                     (C)  internal affairs investigations according to
  the seriousness of the threat to recipient safety and the risk to
  program integrity in terms of the amount or scope of fraud, waste,
  and abuse posed by the allegation that is the subject of the
  investigation; and  
               (3)  to guide field investigators in closing a case
  that is not worth pursuing through a full investigation.
         (q)  The executive commissioner, on behalf of the office,
  shall adopt rules establishing criteria for determining
  enforcement and punitive actions with regard to a provider who has
  violated state law, program rules, or the provider's Medicaid
  provider agreement that include:
               (1)  direction for categorizing provider violations
  according to the nature of the violation and for scaling resulting
  enforcement actions, taking into consideration:
                     (A)  the seriousness of the violation;
                     (B)  the prevalence of errors by the provider;
                     (C)  the financial or other harm to the state or
  recipients resulting or potentially resulting from those errors;
  and
                     (D)  mitigating factors the office determines
  appropriate; and
               (2)  a specific list of potential penalties, including
  the amount of the penalties, for fraud and other Medicaid program
  violations.
         (r)  The office shall review the office's investigative
  process, including the office's use of sampling and extrapolation
  to audit provider records. The review shall be performed by staff
  who are not directly involved in investigations conducted by the
  office.
         SECTION 3.  Section 531.102(l), Government Code, as added by
  Chapter 1311 (S.B. 8), Acts of the 83rd Legislature, Regular
  Session, 2013, is redesignated as Section 531.102(o), Government
  Code, to read as follows:
         (o) [(l)]  Nothing in this section limits the authority of
  any other state agency or governmental entity.
         SECTION 4.  Section 531.113, Government Code, is amended by
  adding Subsection (d-1) and amending Subsection (e) to read as
  follows:
         (d-1)  The commission's office of inspector general shall:
               (1)  investigate, including by means of regular audits,
  possible fraud, waste, and abuse by managed care organizations
  subject to this section;
               (2)  establish requirements for the provision of
  training to and regular oversight of special investigative units
  established by managed care organizations under Subsection (a)(1)
  and entities with which managed care organizations contract under
  Subsection (a)(2);
               (3)  establish requirements for approving plans to
  prevent and reduce fraud and abuse adopted by managed care
  organizations under Subsection (b);
               (4)  evaluate statewide fraud, waste, and abuse trends
  in the Medicaid program and communicate those trends to special
  investigative units and contracted entities to determine the
  prevalence of those trends; and 
               (5)  assist managed care organizations in discovering
  or investigating fraud, waste, and abuse, as needed.
         (e)  The executive commissioner shall adopt rules as
  necessary to accomplish the purposes of this section, including
  rules defining the investigative role of the commission's office of
  inspector general with respect to the investigative role of special
  investigative units established by managed care organizations
  under Subsection (a)(1) and entities with which managed care
  organizations contract under Subsection (a)(2). The rules adopted
  under this section must specify the office's role in:
               (1)  reviewing the findings of special investigative
  units and contracted entities;
               (2)  investigating cases where the overpayment amount
  sought to be recovered exceeds $100,000; and
               (3)  investigating providers who are enrolled in more
  than one managed care organization.
         SECTION 5.  Section 531.118(b), Government Code, is amended
  to read as follows:
         (b)  If the commission receives an allegation of fraud or
  abuse against a provider from any source, the commission's office
  of inspector general shall conduct a preliminary investigation of
  the allegation to determine whether there is a sufficient basis to
  warrant a full investigation.  A preliminary investigation must
  begin not later than the 30th day, and be completed not later than
  the 45th day, after the date the commission receives or identifies
  an allegation of fraud or abuse.
         SECTION 6.  Section 531.120(b), Government Code, is amended
  to read as follows:
         (b)  A provider may [must] request an [initial] informal
  resolution meeting under this section, and on [not later than the
  30th day after the date the provider receives notice under
  Subsection (a).   On] receipt of the [a timely] request, the office
  shall schedule the [an initial] informal resolution meeting [not
  later than the 60th day after the date the office receives the
  request, but the office shall schedule the meeting on a later date,
  as determined by the office if requested by the provider].  The
  office shall give notice to the provider of the time and place of
  the [initial] informal resolution meeting [not later than the 30th
  day before the date the meeting is to be held].  The informal
  resolution process shall run concurrently with the administrative
  hearing process, and the administrative hearing process may not be
  delayed on account of the informal resolution process. [A provider
  may request a second informal resolution meeting not later than the
  20th day after the date of the initial informal resolution
  meeting.     On receipt of a timely request, the office shall schedule
  a second informal resolution meeting not later than the 45th day
  after the date the office receives the request, but the office shall
  schedule the meeting on a later date, as determined by the office if
  requested by the provider.     The office shall give notice to the
  provider of the time and place of the second informal resolution
  meeting not later than the 20th day before the date the meeting is
  to be held.     A provider must have an opportunity to provide
  additional information before the second informal resolution
  meeting for consideration by the office.]
         SECTION 7.  Section 531.1201(b), Government Code, is amended
  to read as follows:
         (b)  The commission's office of inspector general is
  responsible for the costs of an administrative hearing held under
  Subsection (a), but a provider is responsible for the provider's
  own costs incurred in preparing for the hearing [Unless otherwise
  determined by the administrative law judge for good cause, at any
  administrative hearing under this section before the State Office
  of Administrative Hearings, the state and the provider shall each
  be responsible for:
               [(1)     one-half of the costs charged by the State Office
  of Administrative Hearings;
               [(2)     one-half of the costs for transcribing the
  hearing;
               [(3)     the party's own costs related to the hearing,
  including the costs associated with preparation for the hearing,
  discovery, depositions, and subpoenas, service of process and
  witness expenses, travel expenses, and investigation expenses; and
               [(4)     all other costs associated with the hearing that
  are incurred by the party, including attorney's fees].
         SECTION 8.  Subchapter C, Chapter 531, Government Code, is
  amended by adding Section 531.1203 to read as follows:
         Sec. 531.1203.  RIGHTS OF AND PROVISION OF INFORMATION TO
  PHARMACIES SUBJECT TO CERTAIN AUDITS. (a)  A pharmacy has a right
  to request an informal hearing before the commission's appeals
  division to contest the findings of an audit conducted by the
  commission's office of inspector general or an entity that
  contracts with the federal government to audit Medicaid providers
  if the findings of the audit do not include that the pharmacy
  engaged in Medicaid fraud.
         (b)  In an informal hearing held under this section, staff of
  the commission's appeals division, assisted by staff responsible
  for the commission's vendor drug program who have expertise in the
  law governing pharmacies' participation in the Medicaid program,
  make the final decision on whether the findings of an audit are
  accurate. Staff of the commission's office of inspector general may
  not serve on the panel that makes the decision on the accuracy of an
  audit. 
         (c)  In order to increase transparency, the commission's
  office of inspector general shall, if the office has access to the
  information, provide to pharmacies that are subject to audit by the
  office or an entity that contracts with the federal government to
  audit Medicaid providers detailed information relating to the
  extrapolation methodology used as part of the audit and the methods
  used to determine whether the pharmacy has been overpaid under the
  Medicaid program. 
         SECTION 9.  The following provisions are repealed:
               (1)  Section 531.1201(c), Government Code; and
               (2)  Section 32.0422(k), Human Resources Code.
         SECTION 10.  Notwithstanding Section 531.004, Government
  Code, the Sunset Advisory Commission shall conduct a
  special-purpose review of the overall performance of the Health and
  Human Services Commission's office of inspector general. In
  conducting the review, the Sunset Advisory Commission shall
  particularly focus on the office's investigations and the
  effectiveness and efficiency of the office's processes, as part of
  the Sunset Advisory Commission's review of agencies for the 87th
  Legislature.  The office is not abolished solely because the office
  is not explicitly continued following the review.
         SECTION 11.  The change in law made by this Act to Section
  531.102(a-1), Government Code, does not affect the entitlement of
  the person serving as inspector general for the Health and Human
  Services Commission immediately before the effective date of this
  Act to continue to serve as inspector general for the remainder of
  the person's term, unless otherwise removed. The change in law
  applies only to a person appointed as inspector general on or after
  the effective date of this Act.
         SECTION 12.  Section 531.102, Government Code, as amended by
  this Act, applies only to a complaint or allegation of Medicaid
  fraud or abuse received by the Health and Human Services Commission
  or the commission's office of inspector general on or after the
  effective date of this Act. A complaint or allegation received
  before the effective date of this Act is governed by the law as it
  existed when the complaint or allegation was received, and the
  former law is continued in effect for that purpose.
         SECTION 13.  Not later than March 1, 2016, the executive
  commissioner of the Health and Human Services Commission shall
  adopt rules necessary to implement the changes in law made by this
  Act to Section 531.102(g)(2), Government Code, regarding the
  circumstances in which a payment hold may be placed on claims for
  reimbursement submitted by a Medicaid provider.
         SECTION 14.  Sections 531.120 and 531.1201, Government Code,
  as amended by this Act, apply only to a proposed recoupment of an
  overpayment or debt of which a provider is notified on or after the
  effective date of this Act. A proposed recoupment of an overpayment
  or debt that a provider was notified of before the effective date of
  this Act is governed by the law as it existed when the provider was
  notified, and the former law is continued in effect for that
  purpose.
         SECTION 15.  Not later than March 1, 2016, the executive
  commissioner of the Health and Human Services Commission shall
  adopt rules necessary to implement Section 531.1203, Government
  Code, as added by this Act.
         SECTION 16.  If before implementing any provision of this
  Act a state agency determines that a waiver or authorization from a
  federal agency is necessary for implementation of that provision,
  the agency affected by the provision shall request the waiver or
  authorization and may delay implementing that provision until the
  waiver or authorization is granted.
         SECTION 17.  This Act takes effect September 1, 2015.