0001| AN ACT | 0002| RELATING TO HEALTH CARE; AMENDING THE MEDICAID FRAUD ACT TO | 0003| ADDRESS MANAGED CARE FRAUD; PROVIDING PENALTIES. | 0004| | 0005| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0006| Section 1. Section 30-44-1 NMSA 1978 (being Laws 1989, Chapter 286, Section 1) is | 0007| amended to read: | 0008| "30-44-1. SHORT TITLE.--Chapter 30, Article 44 NMSA 1978 may be cited as the | 0009| "Medicaid Fraud Act"." | 0010| Section 2. Section 30-44-2 NMSA 1978 (being Laws 1989, Chapter 286, Section 2) is | 0011| amended to read: | 0012| "30-44-2. DEFINITIONS.--As used in the Medicaid Fraud Act: | 0013| A. "benefit" means money, treatment, services, goods or anything of value | 0014| authorized under the program; | 0015| B. "claim" means any communication, whether oral, written, electronic or | 0016| magnetic, that identifies a treatment, good or service as reimbursable under the program; | 0017| C. "cost document" means any cost report or similar document that states income | 0018| or expenses and is used to determine a cost reimbursement based rate of payment for a provider | 0019| under the program; | 0020| D. "covered person" means an individual who is entitled to receive health care | 0021| benefits from a managed health care plan; | 0022| E. "department" means the human services department; | 0023| F. "entity" means a person other than an individual and includes corporations, | 0024| partnerships, associations, joint-stock companies, unions, trusts, pension funds, unincorporated | 0025| organizations, governments and political subdivisions thereof and nonprofit organizations; | 0001| G. "great physical harm" means physical harm of a type that causes physical loss | 0002| of a bodily member or organ or functional loss of a bodily member or organ for a prolonged | 0003| period of time; | 0004| H. "great psychological harm" means psychological harm that causes mental or | 0005| emotional incapacitation for a prolonged period of time or that causes extreme behavioral change | 0006| or severe physical symptoms or that requires psychological or psychiatric care; | 0007| I. "health care official" means: | 0008| (1) an administrator, officer, trustee, fiduciary, custodian, counsel, agent | 0009| or employee of a managed care health plan; | 0010| (2) an officer, counsel, agent or employee of an organization that | 0011| provides, proposes to or contracts to provide services to a managed health care plan; or | 0012| (3) an official, employee or agent of a state or federal agency with | 0013| regulatory or administrative authority over a managed health care plan; | 0014| J. "managed health care plan" means a government-sponsored health benefit plan | 0015| that requires a covered person to use, or creates incentives, including financial incentives, for a | 0016| covered person to use health care providers managed, owned, under contract with or employed by | 0017| a health care insurer or provider service network. A "managed health care plan" includes the | 0018| health care services offered by a health maintenance organization, preferred provider | 0019| organization, health care insurer, provider service network, entity or person that contracts to | 0020| provide or provides goods or services that are reimbursed by or are a required benefit of a state or | 0021| federally funded health benefit program, or any person or entity who contracts to provide goods | 0022| or services to the program; | 0023| K. "person" includes individuals, corporations, partnerships and other | 0024| associations; | 0025| L. "physical harm" means an injury to the body that causes pain or incapacitation; | 0001| M. "program" means the medical assistance program authorized under Title XIX | 0002| of the federal Social Security Act, 42 U.S.C. 1396, et seq. and implemented under Section 27-2- | 0003| 12 NMSA 1978; | 0004| N. "provider" means any person who has applied to participate or who | 0005| participates in the program as a supplier of treatment, services or goods; | 0006| O. "psychological harm" means emotional or psychological damage of such a | 0007| nature as to cause fear, humiliation or distress or to impair a person's ability to enjoy the normal | 0008| process of his life; | 0009| P. "recipient" means any individual who receives or requests benefits under the | 0010| program; | 0011| Q. "records" means any medical or business documentation, however recorded, | 0012| relating to the treatment or care of any recipient, to services or goods provided to any recipient or | 0013| to reimbursement for treatment, services or goods, including any documentation required to be | 0014| retained by regulations of the program; and | 0015| R. "unit" means the medicaid fraud control unit or any other agency with power | 0016| to investigate or prosecute fraud and abuse of the program." | 0017| Section 3. Section 30-44-7 NMSA 1978 (being Laws 1989, Chapter 286, Section 7, as | 0018| amended) is amended to read: | 0019| "30-44-7. MEDICAID FRAUD--DEFINED--PENALTIES.-- | 0020| A. Medicaid fraud consists of: | 0021| (1) paying, soliciting, offering or receiving: | 0022| (a) a kickback or bribe in connection with the furnishing of | 0023| treatment, services or goods for which payment is or may be made in whole or in part under the | 0024| program, including an offer or promise to, or a solicitation or acceptance by, a health care official | 0025| of anything of value with intent to influence a decision or commit a fraud affecting a state or | 0001| federally funded or mandated managed health care plan; | 0002| (b) a rebate of a fee or charge made to a provider for referring a | 0003| recipient to a provider; | 0004| (c) anything of value, intending to retain it and knowing it to be in | 0005| excess of amounts authorized under the program, as a precondition of providing treatment, care, | 0006| services or goods or as a requirement for continued provision of treatment, care, services or | 0007| goods; or | 0008| (d) anything of value, intending to retain it and knowing it to be in | 0009| excess of the rates established under the program for the provision of treatment, services or | 0010| goods; | 0011| (2) providing with intent that a claim be relied upon for the expenditure of | 0012| public money: | 0013| (a) treatment, services or goods that have not been ordered by a | 0014| treating physician; | 0015| (b) treatment that is substantially | 0016| inadequate when compared to generally recognized standards within the discipline or industry; or | 0017| (c) merchandise that has been adulterated, debased or mislabeled | 0018| or is outdated; | 0019| (3) presenting or causing to be presented for allowance or payment with | 0020| intent that a claim be relied upon for the expenditure of public money any false, fraudulent, | 0021| excessive, multiple or incomplete claim for furnishing treatment, services or goods; or | 0022| (4) executing or conspiring to execute a plan or action to: | 0023| (a) defraud a state or federally funded or mandated managed | 0024| health care plan in connection with the delivery of or payment for health care benefits, including | 0025| engaging in any intentionally deceptive marketing practice in connection with proposing, | 0001| offering, selling, soliciting or providing any health care service in a state or federally funded or | 0002| mandated managed health care plan; or | 0003| (b) obtain by means of false or fraudulent representation or | 0004| promise anything of value in connection with the delivery of or payment for health care benefits | 0005| that are in whole or in part paid for or reimbursed or subsidized by a state or federally funded or | 0006| mandated managed health care plan. This includes representations or statements of financial | 0007| information, enrollment claims, demographic statistics, encounter data, health services available | 0008| or rendered and the qualifications of persons rendering health care or ancillary services. | 0009| B. Except as otherwise provided for in this section regarding the payment of fines | 0010| by an entity, whoever commits medicaid fraud as described in Paragraph (1) or (3) of Subsection | 0011| A of this section is guilty of a fourth degree felony and shall be sentenced pursuant to the | 0012| provisions of Section 31-18-15 NMSA 1978. | 0013| C. Except as otherwise provided for in this section regarding the payment of fines | 0014| by an entity, whoever commits medicaid fraud as described in Paragraph (2) or (4) of Subsection | 0015| A of this section when the value of the benefit, treatment, services or goods improperly provided | 0016| is: | 0017| (1) not more than one hundred dollars ($100) is guilty of a petty | 0018| misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978; | 0019| (2) more than one hundred dollars ($100) but not more than two hundred | 0020| fifty dollars ($250) is guilty of a misdemeanor and shall be sentenced pursuant to the provisions | 0021| of Section 31-19-1 NMSA 1978; | 0022| (3) more than two hundred fifty dollars ($250) but not more than two | 0023| thousand five hundred dollars ($2,500) is guilty of a fourth degree felony and shall be sentenced | 0024| pursuant to the provisions of Section 31-18-15 NMSA 1978; | 0025| (4) more than two thousand five hundred dollars ($2,500) but not more | 0001| than twenty thousand dollars ($20,000) shall be guilty of a third degree felony and shall be | 0002| sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and | 0003| (5) more than twenty thousand dollars ($20,000) shall be guilty of a | 0004| second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 | 0005| NMSA 1978. | 0006| D. Except as otherwise provided for in this section regarding the payment of fines | 0007| by an entity, whoever commits medicaid fraud when the fraud results in physical harm or | 0008| psychological harm to a recipient is guilty of a fourth degree felony and shall be sentenced | 0009| pursuant to the provisions of Section 31-18-15 NMSA 1978. | 0010| E. Except as otherwise provided for in this section regarding the payment of fines | 0011| by an entity, whoever commits medicaid fraud when the fraud results in great physical harm or | 0012| great psychological harm to a recipient is guilty of a third degree felony and shall be sentenced | 0013| pursuant to the provisions of Section 31-18-15 NMSA 1978. | 0014| F. Except as otherwise provided for in this section regarding the payment of fines | 0015| by an entity, whoever commits medicaid fraud when the fraud results in death to a recipient is | 0016| guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31- | 0017| 18-15 NMSA 1978. | 0018| G. If the person who commits medicaid fraud is an entity rather than an | 0019| individual, the entity shall be subject to a fine of not more than fifty thousand dollars ($50,000) | 0020| for each misdemeanor and not more than two hundred fifty thousand dollars ($250,000) for each | 0021| felony." | 0022| Section 4. Section 30-44-8 NMSA 1978 (being Laws 1989, Chapter 286, Section 8) is | 0023| amended to read: | 0024| "30-44-8. CIVIL PENALTIES--CREATED--ENUMERATED--PRESUMPTION-- | 0025| LIMITATION OF ACTION.-- | 0001| A. Any person who receives payment for furnishing treatment, services or goods | 0002| under the program, which payment the person is not entitled to receive by reason of a violation of | 0003| the Medicaid Fraud Act, shall, in addition to any other penalties or amounts provided by law, be | 0004| liable for: | 0005| (1) payment of interest on the amount of the excess payments at the | 0006| maximum legal rate in effect on the date the payment was made, for the period from the date | 0007| payment was made to the date of repayment to the state; | 0008| (2) a civil penalty in an amount of up to three times the amount of excess | 0009| payments; | 0010| (3) payment of a civil penalty of up to ten thousand dollars ($10,000) for | 0011| each false or fraudulent claim submitted or representation made for providing treatment, services | 0012| or goods; and | 0013| (4) payment of legal fees and costs of investigation and enforcement of | 0014| civil remedies. | 0015| B. Penalties and interest amounts assessed under this section shall be remitted to | 0016| the state treasurer for deposit in the general fund. | 0017| C. Any legal fees, costs of investigation and costs of enforcement of civil | 0018| remedies recovered on behalf of the state shall be remitted to the state treasurer for deposit in the | 0019| general fund. | 0020| D. A criminal action need not be brought against a person as a condition | 0021| precedent to enforcement of civil liability under the Medicaid Fraud Act. | 0022| E. The remedies under this section are separate from and cumulative to any other | 0023| administrative and civil remedies available under federal or state law or regulation. | 0024| F. The department may adopt regulations for the administration of the civil | 0025| penalties contained in this section. | 0001| G. No action under this section shall be brought after the expiration of five | 0002| years from the date the action accrues." |