A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY AMENDING SECTION 43-7-60, RELATING TO THE PROHIBITION OF FALSE CLAIMS, STATEMENTS, OR REPRESENTATION BY MEDICAL PROVIDERS, SO AS TO CREATE TIERED VIOLATIONS AND PENALTIES FOR THIS SECTION AND PROVIDE FOR THE USE OF CONSENT AGREEMENTS; BY AMENDING SECTION 43-7-70, RELATING TO THE PROHIBITION OF FALSE STATEMENTS OR REPRESENTATION ON APPLICATIONS FOR ASSISTANCE, SO AS TO CREATE TIERED VIOLATIONS AND PENALTIES FOR THIS SECTION AND PROVIDE FOR THE USE OF CONSENT AGREEMENTS; AND BY AMENDING SECTION 43-7-90, RELATING TO THE ENFORCEMENT OF SECTIONS 43-7-60 TO 43-7-80, SO AS TO AUTHORIZE THE ATTORNEY GENERAL TO ISSUE ADMINISTRATIVE SUBPOENAS AND OTHER APPROPRIATE ACTIONS.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  Section 43-7-60 of the S.C. Code is amended to read:

 

    Section 43-7-60. (A) For purposes of this section:

       (1) "provider" includes a person who provides goods, services, or assistance and who is entitled or claims to be entitled to receive reimbursement, payment, or benefits under the state'sState Medicaid programProgram.  "Provider" also includes an owner, a billing agent, and a person acting as an employee, representative, or agent of the provider.

       (2) "false claim, statement, or representation" means a claim, statement, or representation made or presented, or attempted to be made or presented, in any form including, but not limited to, a claim, statement, or representation which is computer generated or transmitted or made, produced, or transmitted by an electronic means or device.

       (3) "State Medicaid Program" includes the state or federal agency which administers or assists in the administration of the State Medicaid Program, a Managed Care Organization, or similar entity contracted under the State Medicaid Program to provide goods, services, or assistance.

    (B) It is unlawful for a provider of medical assistance, goods, or services to knowingly and wilfully make or cause to be made a false claim, statement, or representation of a material fact:

       (1) in an application or request, including an electronic or computer generated claim, for a benefit, payment, or reimbursement from the State Medicaid Programa state or federal agency which administers or assists in the administration of the state's medical assistance or Medicaid program;  or

       (2) on a report, certificate, or similar document, including an electronic or computer generated claim, submitted to a state or federal agency which administers or assists in the administration of the state's the State Medicaid Programprogram in order for a provider or facility to qualify or remain qualified under the state'sState Medicaid Programprogram to provide assistance, goods, or services, or receive reimbursement, payment, or benefit for this assistance, goods, or services.

    For purposes of this subsection, each false claim, representation, or statement constitutes a separate offense.

    (C) It is unlawful for a provider of medical assistance, goods, or services knowingly and wilfully to conceal or fail to disclose any material fact, event, or transaction which affects the:

       (1) provider's initial or continued entitlement to payment, reimbursement, or benefits under the state'sState Medicaid planProgram;  or

       (2) amount of payment, reimbursement, or benefit to which the provider may be entitled for services, goods, or assistance rendered.

    For purposes of this subsection, each fact, event, or transaction concealed or not disclosed constitutes a separate offense.

    (D) A person who knowingly makes a false claim, statement, or misrepresentation, and any other person who knowingly assists, abets, solicits, or conspires with a person to make a false claim, statement, or misrepresentation, is guilty of a: A person who violates the provisions of this section is guilty of medical assistance provider fraud, a Class A misdemeanor and, upon conviction, must be imprisoned not more than three years and fined not more than one thousand dollars for each offense.

       (1) Class A misdemeanor for a first offense violation, if the amount of the economic advantage or benefit sought or received is less than five thousand dollars and, upon conviction, the person must be imprisoned not more than three years or fined not more than one thousand dollars, or both.

       (2) Class F felony for a first offense violation, if the amount of the economic advantage or benefit sought or received is five thousand dollars or more but less than fifty thousand dollars. Upon conviction, the person must be fined not less than five thousand nor more than twenty thousand dollars or imprisoned not more than five years, or both.

       (3) Class E felony for a first offense violation, if the amount of the economic advantage or benefit sought or received is fifty thousand dollars or more. Upon conviction, the person must be fined not less than twenty thousand nor more than fifty thousand dollars or imprisoned not more than ten years, or both.

    (E) In addition to the criminal penalties set forth in subsection (D), a person convicted pursuant to the provisions of this section must be ordered by the court to make full restitution to a victim for any economic advantage or benefit that has been obtained by the person as a result of that violation.

    (E)(F) In addition to all other remedies provided by law, the Attorney General may bring an action to recover damages equal to three times the amount of an overstatement or overpayment and the court may impose a civil penalty of two thousand dollars for each false claim, representation, or overstatement made to a state or federal agency which administers funds under the state's Medicaid program.  Upon a finding that the provider has violated a provision of this section, the state agency which administers the Medicaid program may impose other administrative sanctions against the provider authorized by law.  A civil or criminal action brought under this section may be filed or brought in either the county where the false claim, statement, or representation originated or in the county in which the false claim, statement, or representation was received by the Health and Human Services Finance Commission or other agency of the State responsible for administering the state's Medicaid Program.

    (G) Nothing in this section shall be construed to prohibit the Attorney General and the person alleged to be guilty of a violation of this section from entering into a written agreement in which the person does not admit or deny the charges but consents to payment of the civil penalty or appropriate voluntary restitution amount, or both. A consent agreement may not be used in a subsequent civil or criminal proceeding relating to any violation of this article.

 

SECTION 2.  Section 43-7-70 of the S.C. Code is amended to read:

 

    Section 43-7-70. (A)(1) It is unlawful for a person to knowingly and wilfully to make or cause to be made a false statement or representation of material fact on an application for assistance, goods, or services under the state'sState Medicaid Programprogram when the false statement or representation is made for the purpose of determining the person's entitlement to assistance, goods, or services.

       (2) It is unlawful for any applicant, recipient, or other person acting on behalf of the applicant or recipient to knowingly and wilfully to conceal or fail to disclose any material fact affecting the applicant's or recipient's initial or continued entitlement to receive assistance, goods, or services under the state'sState Medicaid programProgram.

       (3) It is unlawful for a person eligible to receive benefits, services, or goods under the State Medicaid programProgram to sell, lease, lend, or otherwise exchange rights, privileges, or benefits to another person.

    (B) A person who violates subsection (A), and any other person who knowingly assists, abets, solicits, or conspires with a person to make a false claim, statement, or misrepresentation as described in subsection (A), is guilty of a:A person who violates the provisions of this section is guilty of medical assistance recipient fraud, a Class A misdemeanor and, upon conviction, must be imprisoned not more than three years or fined not more than one thousand dollars, or both.

       (1) Class A misdemeanor for a first offense violation, if the amount of the economic advantage or benefit sought or received is less than five thousand dollars and, upon conviction, the person must be imprisoned not more than three years or fined not more than one thousand dollars, or both.

       (2) Class F felony for a first offense violation, if the amount of the economic advantage or benefit received is five thousand dollars or more but less than fifty thousand dollars. Upon conviction, the person must be fined not less than five thousand nor more than twenty thousand dollars or imprisoned not more than five years, or both.

       (3) Class E felony for a first offense violation, if the amount of the economic advantage or benefit received is fifty thousand dollars or more. Upon conviction, the person must be fined not less than twenty thousand nor more than fifty thousand dollars or imprisoned not more than ten years, or both.

    (C) In addition to the criminal penalties set forth in subsection (B), a person convicted pursuant to the provisions of this section must be ordered by the court to make full restitution to a victim for any economic advantage or benefit that has been obtained by the person as a result of that violation.

    (D) In addition to all other remedies under this section, the Attorney General may bring a civil action to recover damages equal to three times the amount of the overpayment by the state agency that administers funds under the State Medicaid Program. A civil or criminal action brought under this section may be filed or brought in either the county where the false claim, statement, or representation originated or in the county in which the false claim, statement, or representation was received by the Health and Human Services Finance Commission or other agency of the State responsible for administering the State Medicaid Program.

    (E) In addition to any criminal liability, any person who is found by a court of competent jurisdiction to have violated any provision of this section is subject to a civil penalty for each violation as follows:

       (1) for a first offense, a fine not to exceed five thousand dollars;

       (2) for a second offense, a fine of not less than five thousand dollars but not to exceed twenty thousand dollars; or

       (3) for a third and subsequent offense, a fine of not less than twenty thousand dollars but not to exceed fifty thousand dollars.

    (F) Nothing in this section shall be construed to prohibit the Attorney General and the person alleged to be guilty of a violation of this section from entering into a written agreement in which the person does not admit or deny the charges but consents to payment of the civil penalty or appropriate voluntary restitution amount, or both. A consent agreement may not be used in a subsequent civil or criminal proceeding relating to any violation of this article.

 

SECTION 3.  Section 43-7-90 of the S.C. Code is amended to read:

 

    Section 43-7-90. The Attorney General has the authority and responsibility to investigate and initiate appropriate action for alleged or suspected violations of Sections 43-7-60 through 43-7-80. This includes, but is not limited to:

       (1) issue administrative subpoenas for the purpose of gathering information and documents relevant to investigating fraud involving the State Medicaid Program; and

       (2) institute proceedings in a court of competent jurisdiction to seek relief necessary to carry out the provisions of this article.

 

SECTION 4.  This act takes effect upon approval by the Governor.

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