HBA-SEB H.B. 1670 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 1670
By: Maxey
Pensions and Investments
3/19/1999
Introduced



BACKGROUND AND PURPOSE 

The Employee's Retirement System of Texas (ERS) administers the uniform
group insurance program (UGIP) for most state employees.  The UGIP includes
Health Select of Texas, Health Select Plus, and 16 fully-insured health
maintenance organizations.  In exploring potential fraud and overpayments
in UGIP, the comptroller's office sampled claims in hospital services,
medical and professional services, and prescription drugs.  The
comptroller's office estimated that 10.5 percent, or $51.6 million, of the
state's UGIP claims for fiscal year 1997 may have been overpayments or
fraudulent.  H.B. 1670 creates and implements measures to detect
overpayments and fraud in claims processed through ERS and provides for
administrative penalties in cases of fraud.   

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the board of trustees of the Employees
Retirement System of Texas and the commissioner of insurance in SECTION
1.01 (Section 4F, Article 3.50-2 (Texas Employees Uniform Group Insurance
Benefits Act)) of this bill. 

SECTION BY SECTION ANALYSIS

ARTICLE 1.  POWERS AND DUTIES OF THE EMPLOYEES 
RETIREMENT SYSTEM OF TEXAS

SECTION 1.01.  Amends Article 3.50-2, V.T.C.S. (Texas Employees Uniform
Group Insurance Benefits Act) by amending Section 4B and by adding Sections
4D, 4E, 4F, and 4G, as follows: 

Sec. 4B.  New title:  ADJUDICATION OF CLAIMS; FRAUDULENT CLAIMS.  (a)
Makes no change. 

(b)  Redesignated from Subsection (a)(1).

(c)  Requires the executive director of the Employees Retirement System of
Texas (executive director, ERS) to take action against a health care
provider under Section 4D of this Act if the executive director determines
that the health care provider has obtained payments under any program
provided under the authority of this Act through a fraudulent insurance
act.   

(d)  Makes conforming changes.

(e)  Redesignated from Subsection (b).

(f)  Redesignated from Subsection (c).  Makes conforming changes.  

(g)  Redesignated from Subsection (d).  Makes a conforming change.

(h)  Redesignated from Subsection (e).

(i)  Redesignated from Subsection (f).
 
(j)  Requires the board of trustees of ERS (trustee) to maintain a
toll-free telephone number for the receipt of complaints regarding
fraudulent insurance acts by participants or health care providers.
Requires the trustee to provide participants with information regarding the
telephone number during each annual enrollment period and to periodically
notify employees of the telephone number by including information with
employee pay statements. 

(k)  Requires the executive director to implement annual training classes
for appropriate members of the trustee's staff, contractors, or
administering firms who process medical claims in order to assist those
persons in identifying potential misrepresentation or fraud in the
operation of the uniform group insurance program (UGIP).  Authorizes the
executive director to contract with the Health and Human Services
Commission or with a private entity for the operation of the training
classes. 

(l)  Requires each carrier and each health care provider who participates
in UGIP, as a condition of that participation, to cooperate fully in any
investigation of a fraudulent insurance act that is conducted by the
executive director of the Texas Department of Insurance (TDI), including
providing to the trustee timely access to patient medical records
determined by the trustee to be necessary for the investigation.  Entitles
the trustee access to patient medical records for the limited purpose
provided by this subsection and provides that it is a "governmental agency"
for the purposes of Section 5.08, Medical Practice Act (Physician-Patient
Communication), notwithstanding any other law regarding confidentiality of
patient records.  Provides that a medical record submitted to the trustee
is confidential and is not subject to disclosure under Chapter 552,
Government Code (Public Information).   

Sec. 4D.  FRAUDULENT INSURANCE ACTS BY PROVIDERS.  (a)  Requires the
executive director to investigate each complaint alleging a fraudulent
insurance act made by an annuitant, an employee, a health care provider, or
a carrier regarding a health care provider participating in a health
benefit plan operated in UGIP. 

(b)  Requires the executive director to terminate an investigation if the
executive director determines that the complaint in unfounded.  Requires
the executive director to refer a complaint to the trustee for appropriate
sanctions or administrative action if the complaint warrants further
action.  Requires the executive director to provide information regarding
the complaint and the action taken to TDI and the affected carrier. 

(c)  Provides that sanctions against a health care provider may include
exclusion from participation as a provider in the program, withholding of
payments to be made to the provider during the pendency of the
investigation, recoupment of unauthorized payments from future payments
made to the provider, and restrictions on provider reimbursement. 

(d)  Provides that administrative actions against a health care provider
may include peer review of claims, required participation of the provider
in educational programs conducted by the trustee or TDI regarding insurance
fraud, required prior authorization for claims, review of payments made to
the provider before and after health care services are provided, and
referral to the appropriate licensing agency for further disciplinary
action. 

(e)  Requires the executive director to use fraud detection software to
identify suspicious provider billing patterns in the claims history files
of the system.  Requires the executive director to report the results of
the use of the software to the trustee and the commissioner of insurance at
least monthly. 

Sec. 4E.  CLAIMS AUDIT.  Requires the executive director to conduct a
quarterly audit of health care claims.  Requires the executive director to
randomly select a specific percentage of claims submitted under UGIP to
determine the validity of the claims.  Requires the executive director, in
performing the audit, to interview employees, annuitants, and  dependents
either in person or by telephone to ensure that the services were received.
Provides that the audit must also include a review of contextual patient
information and the patient's medical records.  Requires the executive
director to refer a fraudulent claim to the trustee and TDI for further
investigation.  Authorizes the executive director to contract with a
private entity for operation of the audit. 

Sec. 4F.  COOPERATION WITH INSURANCE DEPARTMENT; MEMORANDUM OF
UNDERSTANDING.  Requires the trustee and the commissioner of insurance, by
rule, to adopt guidelines and priorities for referring cases of alleged
fraudulent insurance acts by health care providers participating in the
program.  Requires the executive director to maintain a detailed record of
those cases, including the total number of cases referred to TDI each
fiscal year and, for each specific case, the type of alleged fraudulent
insurance act and the date of referral to TDI.  Requires the trustee and
TDI to enter into a memorandum of understanding regarding the processing of
referrals of suspected fraudulent insurance acts in UGIP and the payment of
the costs of prosecution of fraud cases. 

Sec. 4G.  ADMINISTRATIVE PENALTY.  (a)  Authorizes the trustee to impose an
administrative penalty on a participant or health care provider who commits
a fraudulent insurance act in obtaining a benefit or a payment under this
Act.           

(b)  Prohibits the amount of the administrative penalty from exceeding
$10,000.  Provides that each day a violation occurs is a separate violation
for the purposes of imposing a penalty.  Requires the amount to be based on
specific facts about the violation.   

(c)  Authorizes the enforcement of a penalty to be stayed during the time
the order is under judicial review if the person pays the penalty to the
clerk of the court or files a supersedeas bond with the court in the amount
of the penalty.  Authorizes a person who cannot afford to pay the penalty
to stay the enforcement by filing an affidavit in the manner required by
the Texas Rules of Civil Procedure, subject to the right of the board to
contest the affidavit as provided by those rules. 

(d)  Authorizes the attorney general to sue to collect the penalty.

(e)  Requires 50 percent of an administrative penalty to be deposited in
the employees life, accident, and health insurance and benefits fund
established under Section 16 of this Act. Authorizes that amount to be
spent by the trustee in investigating and prosecuting fraudulent insurance
acts committed against the state employees uniform group benefits program.
Requires the remainder of the administrative penalty to be remitted to the
comptroller for deposit in the general revenue fund. 

(f)  Provides that a proceeding to impose the penalty is considered to be a
contested case under Chapter 2001, Government Code (Administrative
Procedure). 

SECTION 1.02.  Amends Section 815.510, Government Code, to require ERS to
include in its report at the end of each fiscal year a description of the
activities conducted during the preceding fiscal year and TDI under
Sections 4B, 4D, 4E, and 4F, Texas Employees Uniform Group Insurance
Benefits Act, to combat fraudulent insurance acts by health care providers
in the operation of the state employees health benefits program.  Provides
that this report is the only periodic report of investments required to be
made by ERS other than a report required by the General Appropriations Act.
Makes conforming changes. 

ARTICLE 2.  POWERS AND DUTIES OF TEXAS DEPARTMENT OF INSURANCE

SECTION 2.01.  Amends Chapter 1, Insurance Code, by adding Article 1.64, as
follows: 

Art. 1.64.  ADMINISTRATIVE ACTIONS AGAINST INSURANCE FRAUD IN GROUP
INSURANCE PROGRAM FOR STATE EMPLOYEES.  Requires TDI, through the insurance
fraud division and in cooperation with ERS, to bring an administrative
action against a health care provider who commits a fraudulent insurance
act regarding UGIP that  results in unauthorized payments to the provider.
Authorizes the commissioner of insurance to impose an administrative
penalty under Article 1.10E (Administrative Penalties) in an amount not to
exceed $10,000, plus twice the amount of the inappropriate amount.
Requires 50 percent of an administrative penalty to be deposited in the TDI
operating fund established under Article 1.31A (State Board of Insurance
Operating Fund).  Authorizes that amount to be spent by TDI in
investigating and prosecuting fraudulent acts committed against statefunded
health care programs.  Requires the remainder of the administrative penalty
to be remitted to the comptroller for deposit in the general revenue fund. 

ARTICLE 3. QUI TAM ACTION

SECTION 3.01.  Amends Chapter 1, Insurance Code, by adding Article 1.65, as
follows: 

Art. 1.65.  ACTION BY PRIVATE PERSON.

Sec. 1.  ACTION BY PRIVATE PERSON AUTHORIZED.  Authorizes a private person
to bring a civil action for a fraudulent insurance act committed in
violation of Section 4B, Texas Employees Uniform Group Insurance Benefits
Act, for the person and for the state. Requires the action to be brought in
the name of the state.  Provides that a person is liable for the amount of
loss incurred by UGIP or a carrier who participates in the program as a
result of the loss, plus an amount equivalent to the amount of the
administrative penalty that may be assessed under the Texas Employees
Uniform Group Insurance Benefits Act if the person commits a fraudulent
insurance act with respect to a claim under that Act. 

Sec. 2.  INITIATION OF ACTION.  (a)  Requires a person bringing an action
to serve a copy of the petition and a written disclosure of substantially
all material evidence and information the person possesses on the attorney
general in compliance with the Texas Rules of Civil Procedure.   

(b)  Requires the petition to be filed in camera and to remain under seal
until at least the 60th day after the date the petition is filed.
Prohibits the petition from being served on the defendant until the court
orders service on the defendant. 

(c)  Authorizes the state to elect to intervene and proceed with the action
not later than the 60th day after the date the attorney general receives
the petition and the material evidence and information. 

(d)  Authorizes the state to move the court to extend the time during which
the petition remains under seal under Subsection (b) for good cause shown.
Authorizes such a motion to be supported by affidavits or other submissions
in camera. 

(e)  Authorizes an action under this article to be dismissed before the end
of the period prescribed by Subsection (b), as extended by Subsection (d),
if applicable, only if the court and the attorney general consent in
writing to the dismissal and state their reasons for consenting. 

Sec. 3.  ANSWER BY DEFENDANT.  Provides that a defendant is not required to
file an answer to a petition filed under this article until the 20th day
after the date the petition is unsealed and served on the defendant in
compliance with the Texas Rules of Civil Procedure. 

Sec. 4.  STATE'S DECISION TO CONTINUE ACTION.  Requires the state to notify
a court that the state will intervene and proceed with the action or that
the state declines to intervene and proceed with the action.  Requires the
notification to take place not later than the last day of the period
prescribed by Section 2(b), as extended by Section 2(d) of this article, if
applicable. 

Sec. 5.  INTERVENTION BY OTHER PARTIES PROHIBITED.  Prohibits a person
other than the state from intervening or brining a related action based on
the facts  underlying a pending action brought under this article. 

Sec. 6.  RIGHTS OF PARTIES IF STATE INTERVENES AND PROCEEDS WITH ACTION.
(a)  Provides that if the state proceeds with the action, the state has the
primary responsibility for prosecuting the action and is not bound by an
act of the person bringing the action.  Establishes that the person
bringing the action has the right to continue as a party to the action
subject to the limitations set forth by this section. 

(b)  Authorizes the state to dismiss the action notwithstanding the
objections of the person bringing the action if the attorney general
notifies the person that the state has filed a motion to dismiss and if the
court provides the person with an opportunity for a hearing on the motion. 

(c)  Authorizes the state to settle the action with the defendant
notwithstanding the objections of the person bringing the action if the
court determines, after a hearing, that the proposed settlement is fair,
adequate, and reasonable under all circumstances. Authorizes the hearing to
be held in camera on a showing of good cause. 

(d)  Authorizes the court to impose limitations on the person's
participation on showing by the state that unrestricted participation
during the course of the litigation by the person bringing the action would
interfere with or unduly delay the state's prosecution of the case, or
would be repetitious or irrelevant, or would be for purposes of harassment.
Authorizes the limitations to include limiting the number of witnesses the
person may call, the length of the testimony of the witnesses called by the
person, the person's cross-examination of witnesses, or the participation
by the person in the litigation.  

(e)  Authorizes the court to limit the participation by the person in the
litigation on showing by the defendant that unrestricted participation
during the course of the litigation by the person bringing the action would
be for purposes of harassment or would cause the defendant undue burden or
unnecessary expense. 

Sec. 7.  RIGHTS OF PARTIES IF STATE DOES NOT INTERVENE AND PROCEED WITH
ACTION.  Authorizes a person bringing an action to conduct the action if
the state elects not to proceed with the action.  Requires the parties to
serve the attorney general with copies of all pleadings filed in the action
and to send the attorney general copies of all deposition transcripts at
the state's expense if the state requests pleadings and deposition
transcripts.  Authorizes the court to permit the state to intervene at a
later date on a showing of good cause without limiting the status and
rights of the person bringing the action. 

Sec. 8.  STAY OF CERTAIN DISCOVERY.  Authorizes a court to stay a discovery
for a period not to exceed 60 days on a showing by the state that the
discovery by the person bringing the action would interfere with the
state's investigation or prosecution of a criminal or civil matter arising
out of the same facts, regardless of whether the state proceeds with the
action.  Requires the court to hear a motion to stay discovery in camera.
Authorizes the court to extend the 60-day period on a further showing in
camera that the state has pursued the criminal or civil investigation or
proceeding with reasonable diligence and that discovery in the civil action
will interfere with the ongoing criminal or civil investigation or
proceedings.  

Sec. 9.  PURSUIT OF ALTERNATE REMEDY BY STATE.  Authorizes the state to
elect to pursue the state's claim through any alternate remedy available to
the state, including any administrative proceeding to determine an
administrative penalty, notwithstanding Section 1 of this article. 

Sec. 10.  AWARD TO PRIVATE PLAINTIFF.  (a)  Entitles a person bringing an
action under this article, if the state proceeds with the action, to
receive at least 10 percent but not more than 25 percent of the proceeds of
the action, depending on the extent to which  the person substantially
contributed to the prosecution of the action, except as provided by
Subsection (b).   

(b)   Authorizes a court to award a person bringing an action the amount
the court considers appropriate but not more than seven percent of the
proceeds of the action if the court finds that the action is based
primarily on disclosures of specific information, other than information
provided by the person bringing the action, relating to allegations or
transactions in a civil or criminal proceeding, in a legislative
administrative report, hearing, audit, or investigation, or from the news
media. Requires the court to consider the significance of the information
and the role of the person bringing the action in advancing the case to
litigation. 

(c)  Entitles a person bringing an action or settling a claim under this
article to receive an amount that the court decides is reasonable for
collecting the civil penalty and damages if the state does not proceed with
the action.  Prohibits the amount from being less than 25 percent or more
than 30 percent of the proceeds of the action. 

(d)  Requires a payment to a person under this section to be made from the
proceeds of the action.  Entitles a person receiving a payment to receive
an amount for reasonable expenses that the court finds to have been
necessarily incurred, plus reasonable attorney's fees and costs.  Requires
expenses, fees, and costs to be awarded against the defendant. 

(e)  Provides that "proceeds of the action" includes proceeds of a
settlement of the action. 

Sec. 11.  REDUCTION OF AWARD.  Authorizes the court to reduce the share of
the proceeds of an action a person would otherwise receive under Section 10
of this article, to the extent the court considers appropriate, if the
court finds that the action was brought by a person who planned and
initiated the violation on which the action was brought, taking into
account the person's role in advancing the case to litigation and any
relevant circumstances pertaining to the violation and regardless of
whether the state proceeds with the action.  Requires the court to dismiss
the person from the civil action and prohibits the person from receiving
any share of the proceeds of the action if the person bringing the action
is convicted of criminal conduct arising from the person's fraudulent
insurance act. Provides that a dismissal under this subsection does not
prejudice the right of the state to continue the action. 

Sec. 12.  AWARD TO DEFENDANT FOR FRIVOLOUS ACTION.  Provides that Chapter
10, Civil Practice and Remedies Code (Sanctions for Frivolous Pleadings and
Motions), applies in an action under this article in which the state does
not proceed with the action and the person originally bringing the action
conducts the action, while Chapter 105, Civil Practice and Remedies Code
(Frivolous Claim by State Agency), applies in an action in which the state
conducts the action. 

Sec. 13.  CERTAIN ACTIONS BARRED.  Prohibits a person from bringing an
action under this article that is based on allegations or transactions that
are the subject of a pending civil suit or an administrative penalty
proceeding in which the state is a party. Prohibits a person from bringing
an action that is based on the public disclosure of allegations or
transactions in a criminal or civil hearing, in a legislative or
administrative report, hearing, audit, or investigation, or from the news
media, unless the person bringing the action is an original source of the
information.  Defines "original source." 

Sec. 14.  STATE NOT LIABLE FOR CERTAIN EXPENSES.  Provides that the state
is not liable for expenses that a person incurs in bringing an action under
this section. 

Sec. 15.  RETALIATION BY EMPLOYER AGAINST PERSON BRINGING SUIT PROHIBITED.
Entitles a person to specific amends if the person is discharged, demoted,
suspended, threatened, harassed, or discriminated against in any other
manner in terms  of employment by the person's employer because of a lawful
act taken by the person in furtherance of an action under this article.
Authorizes a person to bring an action in a district court for the relief
provided in this section.   

ARTICLE 4.  TRANSITION

SECTION 4.01.  Requires ERS to implement the toll-free telephone number
required by this Act not later than January 1, 2000. 

SECTION 4.02.  Requires ERS to implement the training classes required by
this Act not later than January 1, 2000. 

SECTION 4.03.  Requires the executive director to use fraud detection
software not later than September 1, 2000.  Requires ERS to analyze the
fraud detection program used by the Health and Human Services Commission
under Chapter 22, Human Resources Code (General Functions of Department of
Human Services), not later than March 1, 2000, for detection of fraud in
the Medicaid program.  Requires ERS to enter into a memorandum of
understanding with the Health and Human Services Commission regarding
participation in the fraud detection program and to pay a proportionate
share of the operation of the program if ERS determines that participation
in the program would result in compliance with the requirement adopted
under Section 4D(e) of this Act with less cost and greater efficiency than
an independent program.   

SECTION 4.04.  Requires ERS and TDI to enter into the memorandum of
understanding required by this Act not later than January 1, 2000. 

SECTION 4.05.  Makes application of an administrative penalty under this
Act prospective to conduct that occurs on or after the effective date of
this Act.   

SECTION 4.06.  Makes application of Article 1.65, Insurance Code, as added
by this Act, prospective to a cause of action that accrues on or after the
effective date of this Act.   

ARTICLE 5.  EFFECTIVE DATE; EMERGENCY

SECTION 5.01.  Effective date: September 1, 1999.

SECTION 5.02.  Emergency clause.