By: Hinojosa, et al.	S.B. No. 207
	(In the Senate - Filed March 13, 2015; March 16, 2015, read
	first time and referred to Committee on Health and Human Services;
	April 7, 2015, reported adversely, with favorable Committee
	Substitute by the following vote:  Yeas 9, Nays 0; April 7, 2015,
	sent to printer.)
Click here to see the committee vote
	COMMITTEE SUBSTITUTE FOR S.B. No. 207	By:  Schwertner

	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), (g), and (k), amending Subsection (f)
	as amended by S.B. 219, Acts of the 84th Legislature, Regular
	Session, 2015, 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 Medicaid, 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 Medicaid, 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 effect immediately. 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 Medicaid [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 Medicaid.
	(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
	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 531.113, Government Code, is amended by
	adding Subsection (d-1) and amending Subsection (e) as amended by
	S.B. 219, Acts of the 84th Legislature, Regular Session, 2015, 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 Medicaid 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 4.  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 5.  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 6.  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 7.  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 Medicaid, 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
	Medicaid.
	SECTION 8.  The following provisions are repealed:
	(1)  Section 531.1201(c), Government Code; and
	(2)  Section 32.0422(k), Human Resources Code, as
	amended by S.B. 219, Acts of the 84th Legislature, Regular Session,
	2015.
	SECTION 9.  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 10.  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 11.  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 12.  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 13.  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 14.  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 15.  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 16.  This Act takes effect September 1, 2015.
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