A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY AMENDING SECTIONS 43-7-60 AND 43-7-70, RELATING TO PROVIDER AND RECIPIENT MEDICAID FRAUD, SO AS TO CREATE TIERED CRIMINAL PENALTIES CORRELATING TO THE AMOUNT OF FRAUD, TO REQUIRE RESTITUTION, TO AUTHORIZE THE ATTORNEY GENERAL'S USE OF CONSENT AGREEMENTS, AND FOR OTHER PURPOSES; AND BY AMENDING SECTION 43-7-90, RELATING TO ENFORCEMENT OF SECTIONS 43-7-60 TO 43-7-80, SO AS TO AUTHORIZE THE ATTORNEY GENERAL TO ISSUE ADMINISTRATIVE SUBPOENAS AND INSTITUTE PROCEEDINGS.

 

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 "Provider" means 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's Medicaid program. "Provider" also includes an owner, a billing agent, and a person acting as an employee, representative, or agent of the provider.

       (2) "false 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" means the state or federal agency which administers or assists in the administration of the state Medicaid program and a managed care organization or similar entity under contract with 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 a state or federal agency which administers or assists in the administration of the state's medical assistance or the state 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'sthe state Medicaid program in order for a provider or facility to qualify or remain qualified under the state'sstate Medicaid program 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 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.

    (D)(1) A person who, in violation of the provisions of this section, knowingly makes a false claim, statement, or misrepresentation, or who knowingly assists, abets, solicits, or conspires with a person to make a false claim, statement, or misrepresentation is guilty of a misdemeanor if the amount of economic advantage or benefit sought or received is less than five thousand dollars and, upon conviction, must be fined not more than one thousand dollars or imprisoned not more than three years, or both.

       (2) A person who, in violation of the provisions of this section, knowingly makes a false claim, statement, or misrepresentation, or who knowingly assists, abets, solicits, or conspires with a person to make a false claim, statement, or misrepresentation is guilty of a felony if the amount of economic advantage or benefit sought or received is at least five thousand dollars but less than fifty thousand dollars and, upon conviction, must be fined not less than five thousand dollars nor more than twenty thousand dollars or imprisoned not more than five years, or both.

       (3) A person who, in violation of the provisions of this section, knowingly makes a false claim, statement, or misrepresentation, or who knowingly assists, abets, solicits, or conspires with a person to make a false claim, statement, or misrepresentation is guilty of a felony if the amount of economic advantage or benefit sought or received is fifty thousand dollars or more and, upon conviction, 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'sstate 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 South Carolina Department of Health and Human Services Finance Commission or other agency of the State responsible for administering the state'sstate Medicaid Programprogram.

    (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 program 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 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 program.

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

    (B) 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.

    (B)(1) A person who knowingly violates subsection (A), and any other person who knowingly assists, abets, solicits, or conspires with a person to make a false statement or representation as described in subsection (A), is guilty of a misdemeanor if the amount of economic advantage or benefit sought or received is less than five thousand dollars and, upon conviction, must be fined not more than one thousand dollars or imprisoned not more than three years, or both.

       (2) A person who knowingly violates subsection (A), and any other person who knowingly assists, abets, solicits, or conspires with a person to make a false statement or representation as described in subsection (A), is guilty of a felony if the amount of economic advantage or benefit sought or received is at least five thousand dollars but less than fifty thousand dollars and, upon conviction, must be fined not less than five thousand dollars nor more than twenty thousand dollars or imprisoned not more than five years, or both.

       (3) A person who violates subsection (A), and any other person who knowingly assists, abets, solicits, or conspires with a person to make a false statement or representation as described in subsection (A), is guilty of a felony if the amount of economic advantage or benefit sought or received is fifty thousand dollars or more and, upon conviction, 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 pursuant to this section may be filed or brought in either the county where the false statement or representation originated or in the county in which the false statement or representation was received by the South Carolina Department of Health and Human Services 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, the authority and responsibility 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.

----XX----