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  S.B. No. 745
 
 
 
 
AN ACT
  relating to fraud prevention under certain health care programs.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Article 39.026(a)(3), Code of Criminal
  Procedure, is amended to read as follows:
               (3)  "Medicaid recipient" means an individual on whose
  behalf a person claims or receives a payment from the Medicaid
  program or a fiscal agent, without regard to whether the individual
  was eligible for benefits under the Medicaid program [has the
  meaning assigned by Section 36.001, Human Resources Code].
         SECTION 2.  The heading to Chapter 36, Human Resources Code,
  is amended to read as follows:
  CHAPTER 36. HEALTH CARE PROGRAM [MEDICAID] FRAUD PREVENTION
         SECTION 3.  Section 36.001, Human Resources Code, is amended
  by amending Subdivisions (1), (2), (3), (5), (9), and (10) and
  adding Subdivisions (1-a), (4-a), (4-b), and (4-c) to read as
  follows:
               (1)  "Child health plan program" means the child health
  plan program established under Chapters 62 and 63, Health and
  Safety Code.
               (1-a)  "Claim" means a written or electronically
  submitted request or demand that:
                     (A)  is signed by a provider or a fiscal agent and
  that identifies a product or service provided or purported to have
  been provided to a health care [Medicaid] recipient as reimbursable
  under a health care [the Medicaid] program, without regard to
  whether the money that is requested or demanded is paid; or
                     (B)  states the income earned or expense incurred
  by a provider in providing a product or a service and that is used to
  determine a rate of payment under a health care [the Medicaid]
  program.
               (2)  "Documentary material" means a record, document,
  or other tangible item of any form, including:
                     (A)  a medical document or X ray prepared by a
  person in relation to the provision or purported provision of a
  product or service to a health care [Medicaid] recipient;
                     (B)  a medical, professional, or business record
  relating to:
                           (i)  the provision of a product or service to
  a health care [Medicaid] recipient; or
                           (ii)  a rate or amount paid or claimed for a
  product or service, including a record relating to a product or
  service provided to a person other than a health care [Medicaid]
  recipient as needed to verify the rate or amount;
                     (C)  a record required to be kept by an agency that
  regulates health care providers; or
                     (D)  a record necessary to disclose the extent of
  services a provider furnishes to health care [Medicaid] recipients.
               (3)  "Fiscal agent" means:
                     (A)  a person who, through a contractual
  relationship with a state agency, receives, processes, and pays a
  claim under a health care [the Medicaid] program; or
                     (B)  the designated agent of a person described by
  Paragraph (A).
               (4-a)  "Health care program" means:
                     (A)  the Medicaid program;
                     (B)  the child health plan program; and
                     (C)  the Healthy Texas Women program.
               (4-b)  "Health care recipient" means an individual on
  whose behalf a person claims or receives a payment from a health
  care program or a fiscal agent, without regard to whether the
  individual was eligible for benefits under the health care program.
               (4-c)  "Healthy Texas Women program" means a program
  operated by the commission that is substantially similar to the
  demonstration project operated under former Section 32.0248 and
  that is intended to expand access to preventive health and family
  planning services for women in this state.
               (5)  "Managed care organization" means a person who is
  authorized or otherwise permitted by law to arrange for or provide a
  managed care plan [has the meaning assigned by Section 32.039(a)].
               (9)  "Provider" means a person who participates in or
  who has applied to participate in a health care [the Medicaid]
  program as a supplier of a product or service and includes:
                     (A)  a management company that manages, operates,
  or controls another provider;
                     (B)  a person, including a medical vendor, that
  provides a product or service to a provider or to a fiscal agent;
                     (C)  an employee of a provider;
                     (D)  a managed care organization; and
                     (E)  a manufacturer or distributor of a product
  for which a health care [the Medicaid] program provides
  reimbursement.
               (10)  "Service" includes care or treatment of a health
  care [Medicaid] recipient.
         SECTION 4.  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 a health care [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 a health care [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 a health care [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 a health care [the Medicaid] program,
  including certification or recertification as:
                           (i)  a hospital;
                           (ii)  a nursing facility or skilled nursing
  facility;
                           (iii)  a hospice;
                           (iv)  an ICF-IID;
                           (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 a health care [the Medicaid] program;
               (5)  except as authorized under a health care [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 a health care [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
  a health care [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 a health care [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);
               (10)  is a managed care organization that contracts
  with the commission or other state agency to provide or arrange to
  provide health care benefits or services to individuals eligible
  under a health care [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 an obligation to pay
  or transmit money or property to this state under a health care [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 a health care [the Medicaid]
  program; or
               (13)  knowingly engages in conduct that constitutes a
  violation under Section 32.039(b).
         SECTION 5.  Section 36.003(a), Human Resources Code, is
  amended to read as follows:
         (a)  A state agency, including the commission, the
  Department of State Health Services, the Department of Aging and
  Disability Services, and the Department of Family and Protective
  Services, shall provide the attorney general access to all
  documentary materials of persons and health care [Medicaid]
  recipients under a health care [the Medicaid] program to which that
  agency has access.  Documentary material provided under this
  subsection is provided to permit investigation of an alleged
  unlawful act or for use or potential use in an administrative or
  judicial proceeding.
         SECTION 6.  Section 36.005(b), Human Resources Code, is
  amended to read as follows:
         (b)  A provider found liable under Section 36.052 for an
  unlawful act may not, for a period of 10 years, provide or arrange
  to provide health care services under a health care [the Medicaid]
  program or supply or sell, directly or indirectly, a product to or
  under a health care [the Medicaid] program.  The executive
  commissioner may by rule:
               (1)  provide for a period of ineligibility longer than
  10 years; or
               (2)  grant a provider a full or partial exemption from
  the period of ineligibility required by this subsection if the
  executive commissioner finds that enforcement of the full period of
  ineligibility is harmful to the [Medicaid] program or a beneficiary
  of the program.
         SECTION 7.  Section 36.008, Human Resources Code, is amended
  to read as follows:
         Sec. 36.008.  USE OF MONEY RECOVERED. The legislature, in
  appropriating money recovered under this chapter, shall consider
  the requirements of the attorney general and other affected state
  agencies in investigating health care program [Medicaid] fraud and
  enforcing this chapter.
         SECTION 8.  Section 36.052(a), Human Resources Code, is
  amended to read as follows:
         (a)  Except as provided by Subsection (c), a person who
  commits an unlawful act is liable to the state for:
               (1)  the amount of any payment or the value of any
  monetary or in-kind benefit provided under a health care [the
  Medicaid] program, directly or indirectly, as a result of the
  unlawful act, including any payment made to a third party;
               (2)  interest on the amount of the payment or the value
  of the benefit described by Subdivision (1) at the prejudgment
  interest rate in effect on the day the payment or benefit was
  received or paid, for the period from the date the benefit was
  received or paid to the date that the state recovers the amount of
  the payment or value of the benefit;
               (3)  a civil penalty of:
                     (A)  not less than $5,500 or the minimum amount
  imposed as provided by 31 U.S.C. Section 3729(a), if that amount
  exceeds $5,500, and not more than $15,000 or the maximum amount
  imposed as provided by 31 U.S.C. Section 3729(a), if that amount
  exceeds $15,000, for each unlawful act committed by the person that
  results in injury to an elderly person, as defined by Section
  48.002(a)(1), a person with a disability, as defined by Section
  48.002(a)(8)(A), or a person younger than 18 years of age; or
                     (B)  not less than $5,500 or the minimum amount
  imposed as provided by 31 U.S.C. Section 3729(a), if that amount
  exceeds $5,500, and not more than $11,000 or the maximum amount
  imposed as provided by 31 U.S.C. Section 3729(a), if that amount
  exceeds $11,000, for each unlawful act committed by the person that
  does not result in injury to a person described by Paragraph (A);
  and
               (4)  two times the amount of the payment or the value of
  the benefit described by Subdivision (1).
         SECTION 9.  Section 36.054(h), Human Resources Code, is
  amended to read as follows:
         (h)  A person who has committed an unlawful act in relation
  to a health care [the Medicaid] program in this state has submitted
  to the jurisdiction of this state and personal service of an
  investigative demand under this section may be made on the person
  outside of this state.
         SECTION 10.  Section 36.055, Human Resources Code, is
  amended to read as follows:
         Sec. 36.055.  ATTORNEY GENERAL AS RELATOR IN FEDERAL ACTION.
  To the extent permitted by 31 U.S.C. Sections 3729-3733, the
  attorney general may bring an action as relator under 31 U.S.C.
  Section 3730 with respect to an act in connection with a health care
  [the Medicaid] program for which a person may be held liable under
  31 U.S.C. Section 3729. The attorney general may contract with a
  private attorney to represent the state under this section.
         SECTION 11.  Section 36.132(a)(2), Human Resources Code, is
  amended to read as follows:
               (2)  "Licensing authority" means:
                     (A)  the Texas Medical Board;
                     (B)  the State Board of Dental Examiners;
                     (C)  the Texas Behavioral Health Executive
  Council;
                     (D)  the Texas Board of Nursing;
                     (E)  the Texas Board of Physical Therapy
  Examiners;
                     (F)  the Texas Board of Occupational Therapy
  Examiners; or
                     (G)  another state agency authorized to regulate a
  provider who receives or is eligible to receive payment for a health
  care service under a health care [the Medicaid] program.
         SECTION 12.  Sections 36.001(6) and (7), Human Resources
  Code, are repealed.
         SECTION 13.  The changes in law made by this Act apply only
  to an unlawful act described by Section 36.002, Human Resources
  Code, as amended by this Act, that is committed on or after the
  effective date of this Act.
         SECTION 14.  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 15.  This Act takes effect September 1, 2023.
 
 
 
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
         I hereby certify that S.B. No. 745 passed the Senate on
  April 3, 2023, by the following vote:  Yeas 31, Nays 0.
 
 
  ______________________________
  Secretary of the Senate    
 
         I hereby certify that S.B. No. 745 passed the House on
  May 16, 2023, by the following vote:  Yeas 139, Nays 1,
  one present not voting.
 
 
  ______________________________
  Chief Clerk of the House   
 
 
 
  Approved:
 
  ______________________________ 
              Date
 
 
  ______________________________ 
            Governor