0001| SENATE BILL 267
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| MICHAEL S. SANCHEZ
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0005|
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0006|
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0007|
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0008| FOR THE HEALTH CARE REFORM COMMITTEE
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0009|
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0010| AN ACT
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0011| RELATING TO HEALTH CARE; AMENDING THE MEDICAID FRAUD ACT TO
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0012| ADDRESS MANAGED CARE FRAUD; PROVIDING PENALTIES.
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0013|
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0014| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0015| Section 1. Section 30-44-1 NMSA 1978 (being Laws 1989,
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0016| Chapter 286, Section 1) is amended to read:
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0017| "30-44-1. SHORT TITLE.--[This act] Chapter 30, Article
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0018| 44 NMSA 1978 may be cited as the "Medicaid Fraud Act"."
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0019| Section 2. Section 30-44-2 NMSA 1978 (being Laws 1989,
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0020| Chapter 286, Section 2) is amended to read:
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0021| "30-44-2. DEFINITIONS.--As used in the Medicaid Fraud
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0022| Act:
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0023| A. "benefit" means money, treatment, services,
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0024| goods or anything of value authorized under the program;
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0025| B. "claim" means any communication, whether oral,
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0001| written, electronic or magnetic, [which] that identifies a
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0002| treatment, good or service as reimbursable under the program;
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0003| C. "cost document" means any cost report or similar
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0004| document [which] that states income or expenses and is used
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0005| to determine a cost reimbursement based rate of payment for a
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0006| provider under the program;
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0007| D. "covered person" means an individual who is
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0008| entitled to receive health care benefits from a managed health
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0009| care plan;
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0010| [D.] E. "department" means the human services
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0011| department;
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0012| [E.] F. "great physical harm" means physical
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0013| harm of a type [which] that causes physical loss of a
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0014| bodily member or organ or functional loss of a bodily member or
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0015| organ for a prolonged period of time;
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0016| [F.] G. "great psychological harm" means
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0017| psychological harm [which] that causes mental or emotional
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0018| incapacitation for a prolonged period of time or [which]
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0019| that causes extreme behavioral change or severe physical
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0020| symptoms or [which] that requires psychological or
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0021| psychiatric care;
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0022| H. "health care official" means:
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0023| (1) an administrator, officer, trustee,
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0024| fiduciary, custodian, counsel, agent or employee of a managed
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0025| care health plan;
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0001| (2) an officer, counsel, agent or employee of
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0002| an organization that provides, proposes to or contracts to
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0003| provide services to a managed health care plan; or
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0004| (3) an official, employee or agent of a state
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0005| or federal agency with regulatory or administrative authority
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0006| over a managed health care plan;
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0007| I. "managed health care plan" means a government-
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0008| sponsored health benefit plan that requires a covered person to
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0009| use, or creates incentives, including financial incentives, for
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0010| a covered person to use health care providers managed, owned,
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0011| under contract with or employed by a health care insurer or
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0012| provider service network. A "managed health care plan"
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0013| includes the health care services offered by a health
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0014| maintenance organization, preferred provider organization,
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0015| health care insurer, provider service network, entity or person
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0016| that contracts to provide or provides goods or services that
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0017| are reimbursed by or are a required benefit of a state or
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0018| federally funded health benefit program, or any person or
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0019| entity who contracts to provide goods or services to the
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0020| program;
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0021| [G.] J. "person" includes individuals,
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0022| corporations, partnerships and other associations;
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0023| [H.] K. "physical harm" means an injury to the
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0024| body [which] that causes pain or incapacitation;
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0025| [I.] L. "program" means the medical assistance
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0001| program authorized under Title XIX of the federal Social
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0002| Security Act, 42 U.S.C. 1396, et seq. and implemented under
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0003| Section 27-2-12 NMSA 1978;
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0004| [J.] M. "provider" means any person who has
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0005| applied to participate or who participates in the program as a
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0006| supplier of treatment, services or goods;
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0007| [K.] N. "psychological harm" means emotional or
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0008| psychological damage of such a nature as to cause fear,
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0009| humiliation or distress or to impair a person's ability to
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0010| enjoy the normal process of his life;
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0011| [L.] O. "recipient" means any individual who
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0012| receives or requests benefits under the program;
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0013| [M.] P. "records" means any medical or business
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0014| documentation, however recorded, relating to the treatment or
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0015| care of any [recippient] recipient, to services or goods
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0016| provided to any recipient or to reimbursement for treatment,
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0017| services or goods, including any documentation required to be
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0018| retained by regulations of the program; and
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0019| [N.] Q. "unit" means the medicaid [providers]
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0020| fraud control unit or any other agency with power to inves-
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0021|
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0022| tigate or prosecute fraud and abuse of the program."
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0023| Section 3. Section 30-44-7 NMSA 1978 (being Laws 1989,
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0024| Chapter 286, Section 7, as amended) is amended to read:
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0025| "30-44-7. MEDICAID FRAUD--DEFINED--PENALTIES.--
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0001| A. Medicaid fraud consists of:
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0002| (1) paying, soliciting, offering or receiving:
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0003| (a) a kickback or bribe in connection
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0004| with the furnishing of treatment, services or goods for which
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0005| payment is or may be made in whole or in part under the
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0006| program, including an offer or promise to, or a solicitation
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0007| or acceptance by, a health care official of anything of value
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0008| with intent to influence a decision or commit a fraud affecting
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0009| a state or federally funded or mandated managed health care
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0010| plan;
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0011| (b) a rebate of a fee or charge made to
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0012| a provider for referring a recipient to a provider;
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0013| (c) anything of value, intending to
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0014| retain it and knowing it to be in excess of amounts authorized
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0015| under the program, as a precondition of providing treatment,
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0016| care, services or goods or as a requirement for continued
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0017| provision of treatment, care, services or goods; or
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0018| (d) anything of value, intending to
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0019| retain it and knowing it to be in excess of the rates
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0020| established under the program for the provision of treatment,
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0021| services or goods;
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0022| (2) providing with intent that a claim be
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0023| relied upon for the expenditure of public money:
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0024| (a) treatment, services or goods that
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0025| have not been ordered by a treating physician;
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0001| (b) treatment that is substantially
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0002| inadequate when compared to generally recognized standards
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0003| within the discipline or industry; or
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0004| (c) merchandise that has been
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0005| adulterated, debased or mislabeled or is outdated; [or]
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0006| (3) presenting or causing to be presented for
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0007| allowance or payment with intent that a claim be relied upon
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0008| for the expenditure of public money any false, fraudulent,
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0009| excessive, multiple or incomplete claim for furnishing
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0010| treatment, services or goods; or
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0011| (4) executing or conspiring to execute a plan
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0012| or action to:
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0013| (a) defraud a state or federally funded
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0014| or mandated managed health care plan in connection with the
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0015| delivery of or payment for health care benefits, including
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0016| engaging in any intentionally deceptive marketing practice in
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0017| connection with proposing, offering, selling, soliciting or
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0018| providing any heath care service in a state or federally funded
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0019| or mandated managed health care plan; or
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0020| (b) obtain by means of false or
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0021| fraudulent representation or promise anything of value in
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0022| connection with the delivery of or payment for health care
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0023| benefits that are in whole or in part paid for or reimbursed or
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0024| subsidized by a state or federally funded or mandated managed
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0025| health care plan. This includes representations or statements
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0001| of financial information, enrollment claims, demographic
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0002| statistics, encounter data, health services available or
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0003| rendered and the qualifications of persons rendering health
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0004| care or ancillary services.
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0005| B. Except as otherwise provided for in this
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0006| section regarding the payment of fines by an entity, whoever
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0007| commits medicaid fraud as described in Paragraph (1) or (3) of
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0008| Subsection A of this section is guilty of a fourth degree
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0009| felony and shall be sentenced pursuant to the provisions of
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0010| Section 31-18-15 NMSA 1978.
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0011| C. Except as otherwise provided for in this
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0012| section regarding the payment of fines by an entity, whoever
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0013| commits medicaid fraud as described in Paragraph (2) or (4)
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0014| of Subsection A of this section when the value of the benefit,
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0015| treatment, services or goods improperly provided is:
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0016| (1) not more than one hundred dollars ($100)
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0017| is guilty of a petty misdemeanor and shall be sentenced
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0018| pursuant to the provisions of Section 31-19-1 NMSA 1978;
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0019| (2) more than one hundred dollars ($100) but
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0020| not more than two hundred fifty dollars ($250) is guilty of a
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0021| misdemeanor and shall be sentenced pursuant to the provisions
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0022| of Section 31-19-1 NMSA 1978;
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0023| (3) more than two hundred fifty dollars ($250)
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0024| but not more than two thousand five hundred dollars ($2,500) is
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0025| guilty of a fourth degree felony and shall be sentenced
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0001| pursuant to the provisions of Section [31-19-1] 31-18-15
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0002| NMSA 1978;
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0003| (4) more than two thousand five hundred
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0004| dollars ($2,500) but not more than twenty thousand dollars
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0005| ($20,000) shall be guilty of a third degree felony and shall be
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0006| sentenced pursuant to the provisions of Section 31-18-15 NMSA
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0007| 1978; and
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0008| (5) more than twenty thousand dollars
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0009| ($20,000) shall be guilty of a second degree felony and shall
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0010| be sentenced pursuant to the provisions of Section 31-18-15
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0011| NMSA 1978.
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0012| D. Except as otherwise provided for in this
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0013| section regarding the payment of fines by an entity, whoever
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0014| commits medicaid fraud when the fraud results in physical harm
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0015| or psychological harm to a recipient is guilty of a fourth
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0016| degree felony and shall be sentenced pursuant to the provisions
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0017| of Section 31-18-15 NMSA 1978.
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0018| E. Except as otherwise provided for in this
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0019| section regarding the payment of fines by an entity, whoever
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0020| commits medicaid fraud when the fraud results in great physical
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0021| harm or great psychological harm to a recipient is guilty of a
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0022| third degree felony and shall be sentenced pursuant to the
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0023| provisions of Section 31-18-15 NMSA 1978.
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0024| F. If the person who commits medicaid fraud is an
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0025| entity rather than an individual, the entity shall be subject
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0001| to a fine of not more than fifty thousand dollars ($50,000) for
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0002| each misdemeanor and not more than two hundred fifty thousand
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0003| dollars ($250,000) for each felony."
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0004| Section 4. Section 30-44-8 NMSA 1978 (being Laws 1989,
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0005| Chapter 286, Section 8) is amended to read:
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0006| "30-44-8. CIVIL PENALTIES--CREATED--ENUMERATED--
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0007| PRESUMPTION--LIMITATION OF ACTION.--
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0008| A. Any person who receives payment for furnishing
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0009| treatment, services or goods under the program, which payment
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0010| the person is not entitled to receive by reason of a violation
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0011| of the Medicaid Fraud Act, shall, in addition to any other
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0012| penalties or amounts provided by law, be liable for:
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0013| (1) payment of interest on the amount of the
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0014| excess payments at the maximum legal rate in effect on the date
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0015| the payment was made, for the period from the date payment was
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0016| made to the date of repayment to the state;
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0017| (2) a civil penalty in an amount of up to
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0018| [two] three times the amount of excess payments;
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0019| (3) payment of a civil penalty of [five
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hundred dollars ($500)] up to ten thousand dollars ($10,000)
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0021| for each false or fraudulent claim submitted or representation
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0022| made for providing treatment, services or goods; and
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0023| (4) payment of legal fees and costs of
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0024| investigation and enforcement of civil remedies.
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0025| B. Penalties and interest amounts assessed under
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0001| this section shall be [paid into the health care trust fund
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established in the Health Care Trust Fund Act if that act is in
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effect, and if it is not, then those amounts shall be]
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0004| remitted to the state treasurer for deposit in the general
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0005| fund.
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0006| C. Any legal fees, costs of investigation and costs
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0007| of enforcement of civil remedies recovered on behalf of the
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0008| state shall be remitted to the state treasurer for deposit in
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0009| the general fund.
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0010| D. A criminal action need not be brought against a
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0011| person as a condition precedent to enforcement of civil
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0012| liability under the Medicaid Fraud Act.
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0013| E. The remedies under this section are separate
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0014| from and cumulative to any other administrative and civil
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0015| remedies available under federal or state law or regulation.
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0016| F. The department may adopt regulations for the
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0017| administration of the civil penalties contained in this
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0018| section.
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0019| G. No action under this section shall be brought
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0020| after the expiration of five years from the date the action
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0021| accrues."
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0022| - 10 -
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0023|
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0024| FORTY-THIRD LEGISLATURE
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0025| FIRST SESSION, 1997
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0001|
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0002|
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0003| March 10, 1997
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0004|
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0005| Mr. President:
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0006|
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0007| Your PUBLIC AFFAIRS COMMITTEE, to whom has been
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0008| referred
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0009|
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0010| SENATE BILL 267
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0011|
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0012| has had it under consideration and reports same with
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0013| recommendation that it DO PASS, and thence referred to the
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0014| JUDICIARY COMMITTEE.
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0015|
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0016| Respectfully submitted,
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0017|
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0018|
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0019|
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0020|
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0021| __________________________________
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0022| Shannon Robinson, Chairman
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0023|
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0024|
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0025|
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0001| Adopted_______________________ Not
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0002| Adopted_______________________
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0003| (Chief Clerk) (Chief Clerk)
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0004|
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0005|
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0006| Date ________________________
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0007|
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0008|
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0009| The roll call vote was 6 For 0 Against
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0010| Yes: 6
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0011| No: 0
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0012| Excused: Garcia, Ingle, Smith
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0013| Absent: None
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0014|
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0015|
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0016| S0267PA1
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0017|
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0018|
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0019|
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0020| FORTY-THIRD LEGISLATURE SB 267/a
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0021| FIRST SESSION, 1997
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0022|
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0023|
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0024| March 15, 1997
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0025|
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0001| Mr. President:
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0002|
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0003| Your JUDICIARY COMMITTEE, to whom has been referred
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0004|
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0005| SENATE BILL 267
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0006|
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0007| has had it under consideration and reports same with
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0008| recommendation that it DO PASS, amended as follows:
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0009|
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0010| 1. On page 2, between lines 10 and 11, insert the following
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0011| new subsection:
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0012|
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0013| "F. "entity" means a person other than an individual
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0014| and includes corporations, partnerships, associations, joint-
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0015| stock companies, unions, trusts, pension funds, unincorporated
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0016| organizations, governments and political subdivisions thereof and
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0017| nonprofit organizations;".
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0018|
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0019| 2. Reletter the succeeding subsections accordingly.
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0020|
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0021| 3. On page 8, between lines 15 and 16, insert the following
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0022| new subsection:
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0023|
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0024| "F. Except as otherwise provided for in this section
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0025| regarding the payment of fines by an entity, whoever commits
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0001| medicaid fraud when the fraud results in death to a recipient is
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0002| guilty of a second degree felony and shall be sentenced pursuant
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0003| to the provisions of Section 31-18-15 NMSA 1978.".
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0004|
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0005| 4. Reletter the succeeding subsection accordingly.
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0006|
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0007|
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0008|
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0009|
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0010|
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0011|
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0012|
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0013|
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0014|
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0015|
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0016|
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0017|
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0018| Respectfully submitted,
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0019|
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0020|
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0021|
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0022|
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0023| __________________________________
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0024| Fernando R. Macias, Chairman
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0025|
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0001|
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0002|
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0003| Adopted_______________________ Not
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0004| Adopted_______________________
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0005| (Chief Clerk) (Chief Clerk)
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0006|
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0007|
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0008| Date ________________________
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0009|
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0010|
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0011| The roll call vote was 5 For 1 Against
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0012| Yes: 5
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0013| No: Payne
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0014| Excused: Tsosie, Vernon
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0015| Absent: None
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0016|
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0017|
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0018| S0267JU1 .116805.3
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0019|
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0020| State of New Mexico
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0021| House of Representatives
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0022|
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0023| FORTY-THIRD LEGISLATURE
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0024| FIRST SESSION, 1997
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0025|
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0001|
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0002| March 21, 1997
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0003|
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0004|
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0005| Mr. Speaker:
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0006|
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0007| Your JUDICIARY COMMITTEE, to whom has been referred
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0008|
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0009| SENATE BILL 267, as amended
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0010|
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0011| has had it under consideration and reports same with
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0012| recommendation that it DO PASS.
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0013|
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0014| Respectfully submitted,
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0015|
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0016|
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0017|
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0018|
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0019| Thomas P. Foy, Chairman
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0020|
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0021|
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0022| Adopted Not Adopted
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0023|
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0024| (Chief Clerk) (Chief Clerk)
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0025|
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0001| Date
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0002|
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0003| The roll call vote was 9 For 0 Against
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0004| Yes: 9
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0005| Excused: Alwin, Foy, Rios, Sanchez
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0006| Absent: None
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0007|
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0008|
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0009| G:\BILLTEXT\BILLW_97\S0267
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