PRINTER'S NO. 77
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
109
Session of
2021
INTRODUCED BY THOMAS, GAYDOS, OWLETT, SANKEY, IRVIN, GROVE,
RYAN, KAUFFMAN, SAYLOR, BERNSTINE AND WEBSTER,
JANUARY 11, 2021
REFERRED TO COMMITTEE ON HUMAN SERVICES, JANUARY 11, 2021
AN ACT
Amending the act of June 13, 1967 (P.L.31, No.21), entitled "An
act to consolidate, editorially revise, and codify the public
welfare laws of the Commonwealth," in fraud and abuse
control, further providing for definitions and for provider
prohibited acts, criminal penalties and civil remedies.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 1401 of the act of June 13, 1967 (P.L.31,
No.21), known as the Human Services Code, is amended by adding a
definition to read:
Section 1401. Definitions.--The following words and phrases
when used in this article shall have, unless the context clearly
indicates otherwise, the meanings given to them in this section:
* * *
"Statement or representation" means a communication that is
used to identify goods or services for which reimbursement is
sought under the medical assistance program or that is or may be
used to determine a rate of reimbursement under the medical
assistance program.
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Section 2. Section 1407 of the act is amended to read:
Section 1407. Provider Prohibited Acts, Criminal Penalties
and Civil Remedies.--(a) It shall be unlawful for any person to
knowingly or intentionally:
(1) [Knowingly or intentionally present for allowance or
payment any false or fraudulent claim or cost report for
furnishing services or merchandise under medical assistance, or
to knowingly present for allowance or payment any claim or cost
report for medically unnecessary services or merchandise under
medical assistance, or to knowingly submit false information,
for the purpose of obtaining greater compensation than that to
which he is legally entitled for furnishing services or
merchandise under medical assistance, or to knowingly submit
false information for the purpose of obtaining authorization for
furnishing services or merchandise under medical assistance.]
Make or cause to be made a materially false, fraudulent or
misleading statement, claim or representation in any record used
by any person in connection with providing goods or services to
any recipient under the medical assistance program.
(1.1) Submit or cause to be submitted false information for
the purpose of obtaining greater compensation than that to which
the person is legally entitled for furnishing goods or services
under the medical assistance program.
(1.2) Submit or cause to be submitted a claim for medically
unnecessary or inadequate services or merchandise provided to a
recipient under the medical assistance program.
(2) Solicit or receive or to offer or pay any remuneration,
including any kickback, bribe or rebate, directly or indirectly,
in cash or in kind from or to any person in connection with the
furnishing of services or merchandise for which payment may be
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in whole or in part under the medical assistance program or in
connection with referring an individual to a person for the
furnishing or arranging for the furnishing of any services or
merchandise for which payment may be made in whole or in part
under the medical assistance program.
(3) Submit or cause to be submitted a duplicate claim for
services, supplies or equipment for which the provider has
already received or claimed reimbursement from any source.
(4) Submit or cause to be submitted a claim for services,
supplies or equipment which were not rendered to a recipient.
(5) Submit or cause to be submitted a claim for services,
supplies or equipment which includes costs or charges not
related to such services, supplies or equipment rendered to the
recipient.
(6) Submit or cause to be submitted a claim or refer a
recipient to another provider by referral, order or
prescription, for services, supplies or equipment which are not
documented in the record in the prescribed manner and are of
little or no benefit to the recipient, are below the accepted
medical treatment standards, or are unneeded by the recipient.
(7) Submit or cause to be submitted a claim which
misrepresents the description of services, supplies or equipment
dispensed or provided; the dates of services; the identity of
the recipient; the identity of the attending, prescribing or
referring practitioner; or the identity of the actual provider.
(8) Submit or cause to be submitted a claim for
reimbursement for a service, charge or item at a fee or charge
which is higher than the provider's usual and customary charge
to the general public for the same service or item.
(9) Submit or cause to be submitted a claim for a service or
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item which was not rendered by the provider.
(10) Dispense, render or provide a service or item without a
practitioner's written order and the consent of the recipient,
except in emergency situations, or submit a claim for a service
or item which was dispensed, or provided without the consent of
the recipient, except in emergency situations.
(11) Except in emergency situations, dispense, render or
provide a service or item to a patient claiming to be a
recipient without making a reasonable effort to ascertain by
verification through a current medical assistance identification
card, that the person or patient is, in fact, a recipient who is
eligible on the date of service and without another available
medical resource.
(12) Enter into an agreement, combination or conspiracy to
obtain or aid another to obtain reimbursement or payments for
which there is not entitlement.
(13) Make a false statement in the application for
enrollment as a provider.
(14) Commit any of the prohibited acts described in section
1403(d)(1), (2), (4) and (5).
(15) Submit or cause to be submitted any record for the
purposes of obtaining reimbursement from the medical assistance
program during any time period when the person is excluded or
precluded from participation in the medical assistance program
or when the person is on the Federal List of Excluded
Individuals/Entities.
(b) (1) [A person who violates any provision of subsection
(a), excepting subsection (a)(11), is guilty of a felony of the
third degree for each such violation with a maximum penalty of
fifteen thousand dollars ($15,000) and seven years imprisonment.
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A violation of subsection (a) shall be deemed to continue so
long as the course of conduct or the defendant's complicity
therein continues; the offense is committed when the course of
conduct or complicity of the defendant therein is terminated in
accordance with the provisions of 42 Pa.C.S. § 5552(d) (relating
to other offenses). Whenever any person has been previously
convicted in any state or Federal court of conduct that would
constitute a violation of subsection (a), a subsequent
allegation, indictment or information under subsection (a) shall
be classified as a felony of the second degree with a maximum
penalty of twenty-five thousand dollars ($25,000) and ten years
imprisonment.
(2)] A person who violates subsection (a), excluding the
provisions of subsection (a)(15), commits:
(i) A felony of the second degree if the amount of excess
payments, whether claimed or actually paid, is over one hundred
thousand dollars ($100,000) or if the person has a prior
conviction in any state or Federal court for conduct that would
constitute a violation of subsection (a).
(ii) A felony of the third degree if the amount of excess
payments, whether claimed or actually paid, is over two thousand
dollars ($2,000) but less than one hundred thousand dollars
($100,000).
(iii) A misdemeanor of the first degree if the amount of
excess payments, whether claimed or actually paid, is less than
two thousand dollars ($2,000).
(2) A person who violates subsection (a)(15) commits a
felony of the second degree.
(b.1) (1) In addition to the penalties provided under
subsection (b), the trial court shall order any person convicted
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under subsection (a):
(i) to repay the amount of the excess benefits or payments
plus interest on that amount at the maximum legal rate from the
date payment was made by the Commonwealth to the date repayment
is made to the Commonwealth;
(ii) to pay an amount not to exceed threefold the amount of
excess benefits or payments.
(2) (Reserved).
(3) Any person convicted under subsection (a) shall be
ineligible to participate in the medical assistance program for
a period of five years from the date of conviction. The
department shall notify any provider so convicted that the
provider agreement is terminated for five years, and the
provider is entitled to a hearing on the sole issue of identity.
If the conviction is set aside on appeal, the termination shall
be lifted.
(4) The Attorney General and the district attorneys of the
several counties shall have concurrent authority to institute
criminal proceedings under the provisions of this section.
(5) As used in this section the following words and phrases
shall have the following meanings:
"Conviction" means a verdict of guilty, a guilty plea, or a
plea of nolo contendere in the trial court.
"Medically unnecessary or inadequate services or merchandise"
means services or merchandise which are unnecessary or
inadequate as determined by medical professionals engaged by the
department who are competent in the same or similar field within
the practice of medicine.
"Person." The term does not include a recipient receiving
public support services unless the recipient knowingly or
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intentionally commits a prohibited act under subsection (a) and
benefits financially from the violation.
(b.2) A violation of subsection (a) shall be deemed to
continue so long as the course of conduct or the person's
complicity in the course of conduct continues. An offense is
committed when the course of conduct or complicity of the person
in the course of conduct is terminated as provided under 42
Pa.C.S. § 5552(d) (relating to other offenses).
(c) (1) If the department determines that a provider has
committed any prohibited act or has failed to satisfy any
requirement under [section 1407(a)] subsection (a), it shall
have the authority to immediately terminate, upon notice to the
provider, the provider agreement and to institute a civil suit
against such provider in the court of common pleas for twice the
amount of excess benefits or payments plus legal interest from
the date the violation or violations occurred. The department
shall have the authority to use statistical sampling methods to
determine the appropriate amount of restitution due from the
provider.
(2) Providers who are terminated from participation in the
medical assistance program for any reason shall be prohibited
from owning, arranging for, rendering or ordering any service
for medical assistance recipients during the period of
termination. In addition, such provider may not receive, during
the period of termination, reimbursement in the form of direct
payments from the department or indirect payments of medical
assistance funds in the form of salary, shared fees, contracts,
kickbacks or rebates from or through any participating provider.
(3) [Notice of any action taken by the department against a
provider pursuant to clauses (1) and (2) will be forwarded by
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the department to the Medicaid Fraud Control Unit of the
Department of Justice and to the appropriate licensing board of
the Department of State for appropriate action, if any. In
addition, the department will forward to the Medicaid Fraud
Control Unit of the Department of Justice and the appropriate
Pennsylvania licensing board of the Department of State any
cases of suspected provider fraud.] The department shall forward
notice of any action taken by the department against a provider
under this section to the Medicaid Fraud Control Unit of the
Office of Attorney General and to the appropriate licensing
board of the Department of State for appropriate action. The
department shall forward to the Medicaid Fraud Control Unit of
the Office of Attorney General and the appropriate licensing
board of the Department of State any cases of suspected provider
fraud.
(d) It shall be considered an affirmative defense to
prosecution of an offense under this section if a person was a
recipient of goods or services through the medical assistance
program and did not knowingly or intentionally commit a
prohibited act under this section.
Section 3. This act shall take effect in 60 days.
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