Stricken language would be deleted from and underlined language would be added to present law.
1 State of Arkansas
2 94th General Assembly A Bill
3 Regular Session, 2023 SENATE BILL 515
4
5 By: Senator Irvin
6
7 For An Act To Be Entitled
8 AN ACT TO AMEND THE MEDICAID FRAUD ACT AND THE
9 MEDICAID FRAUD FALSE CLAIMS ACT; TO MAKE DEFINITIONS
10 AND LANGUAGE CONSISTENT BETWEEN THE MEDICAID FRAUD
11 ACT AND THE MEDICAID FRAUD FALSE CLAIMS ACT; TO
12 REDUCE CIVIL PENALTIES TO BE CONSISTENT WITH FEDERAL
13 LAW; TO UPDATE LANGUAGE AND DEFINITIONS TO REFLECT
14 CHANGES WITHIN THE HEALTHCARE SYSTEM; TO ENHANCE A
15 SENTENCE IF THE MEDICAID FRAUD CAUSES PHYSICAL INJURY
16 OR DEATH; AND FOR OTHER PURPOSES.
17
18
19 Subtitle
20 TO AMEND THE MEDICAID FRAUD ACT AND THE
21 MEDICAID FRAUD FALSE CLAIMS ACT.
22
23
24 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
25
26 SECTION 1. Arkansas Code § 5-55-102(2), concerning the definition of
27 "claim" within the Medicaid Fraud Act, is amended to read as follows:
28 (2)(A) “Claim” means any written or electronically submitted
29 request or demand for reimbursement or payment made by any Medicaid provider
30 to the Arkansas Medicaid Program, a managed care organization, or any fiscal
31 agent of the Arkansas Medicaid Program or a managed care organization for
32 each good or service purported to have been provided to any Medicaid
33 recipient and all documentation required to be created or maintained by law
34 or rule to justify, support, approve, or document the delivery of healthcare
35 goods or services to a Medicaid recipient as a condition of participation in
36 the Arkansas Medicaid Program as mandated by the Arkansas Medicaid Program
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1 provider agreement, rules, or managed care contract request or demand for
2 money or property, regardless of whether under a contract, that:
3 (i) Is presented to an officer, employee, agent, or
4 fiscal agent of the Arkansas Medicaid Program; and
5 (ii) Is made to a contractor, grantee, or other
6 recipient if:
7 (a) The money or property is spent or used on
8 behalf of the Arkansas Medicaid Program or to advance the Arkansas Medicaid
9 Program or its interest; and
10 (b) The Arkansas Medicaid Program:
11 (1) Provides or has provided any portion
12 of the money or property requested or demanded; or
13 (2) Is reimbursing the contractor,
14 grantee, or other recipient for any portion of the money or property that is
15 requested or demanded.
16 (B) "Claim" includes:
17 (i) Billing documentation;
18 (ii) All documentation required to be created or
19 maintained by law or rule to justify, support, or document the delivery of
20 healthcare goods or services to a Medicaid recipient;
21 (iii) All documentation submitted to justify or help
22 establish a unit rate, capitated rate, or other method of determining what is
23 to be paid for healthcare goods and services to a Medicaid recipient; and
24 (iv) All transactions in payment for healthcare
25 goods and services delivered or claimed to have been delivered to a Medicaid
26 recipient under the Arkansas Medicaid Program, regardless of whether the
27 state has title to the money or property or has transferred responsibility
28 for delivering healthcare goods or services to another legal entity;
29
30 SECTION 2. Arkansas Code § 5-55-102(4) and (5), concerning the
31 definitions within the Medicaid Fraud Act, are amended to read as follows:
32 (4)(A) “Illegal Medicaid participation” means participation in
33 the Arkansas Medicaid Program when the individual or organization is
34 suspended from the Arkansas Medicaid Program or on a state or federal
35 excluded Medicaid provider list.
36 (B) “Illegal Medicaid participation” includes without
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1 limitation when a suspended or excluded individual or organization:
2 (i) Is employed or contracting with a Medicaid
3 provider or managed care organization or otherwise associated with a Medicaid
4 provider or managed care organization for the purpose of providing or
5 supervising the provision of goods and services to Medicaid recipients;
6 (ii) Plays any role in the management of a Medicaid
7 provider directly as a manager or management company or indirectly as a
8 consultant or advisor; or
9 (iii) Receives payment for administrative and
10 management services directly or indirectly related to patient care such as
11 processing Medicaid claims for payment, attending to services that assist or
12 support Medicaid recipients, or acting as a Medicaid consultant or advisor;
13 (5)(4) “Managed care organization” means a health insurer,
14 Medicaid provider, or other business entity authorized by state law or
15 through a contract with the state to receive a fixed or capitated rate or fee
16 to manage all or a portion of the delivery of healthcare goods or services to
17 Medicaid recipients;
18 (5) "Material" means having a natural tendency to influence, or
19 to be capable of influencing, the payment or receipt of money or property and
20 includes without limitation a false statement, omission, or representation if
21 the false statement, omission, or representation is likely to induce or cause
22 the Arkansas Medicaid Program to pay, approve, or act in a particular way;
23
24 SECTION 3. Arkansas Code § 5-55-102(8) and (9), concerning the
25 definitions within the Medicaid Fraud Act, are amended to read as follows:
26 (8) "Overpayment" means the full amount of the Medicaid funds
27 obtained as a direct or indirect result of a violation of Medicaid fraud, §
28 5-55-111, § 20-77-902, the rules of the Arkansas Medicaid Program, or a
29 managed care provider contract;
30 (9) “Person” means any:
31 (A) Medicaid provider of goods or services under the
32 Arkansas Medicaid Program or any employee of the Medicaid provider,
33 independent contractor of the Medicaid provider, contractor of the Medicaid
34 provider, or subcontractor of the Medicaid provider, whether the Medicaid
35 provider be an individual, individual medical vendor, firm, corporation,
36 professional association, partnership, organization, risk-based provider
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1 organization, managed care organization, or other legal entity; or
2 (B) Individual, individual medical vendor, firm,
3 corporation, professional association, partnership, organization, risk-based
4 provider organization, managed care organization, or other legal entity, or
5 any employee of any individual, individual medical vendor, firm, corporation,
6 professional association, partnership, organization, risk-based provider
7 organization, managed care organization, or other legal entity, not a
8 Medicaid provider under the Arkansas Medicaid Program but that provides goods
9 or services to a Medicaid provider under the Arkansas Medicaid Program for
10 which the Medicaid provider submits claims to the Arkansas Medicaid Program
11 or its fiscal agents; and
12 (9)(A)(10) “Records” means all documents that disclose the
13 nature, extent, and level of healthcare goods and services provided to
14 Medicaid recipients., including without limitation:
15 (A) Images, slides, film, video, and similar physical and
16 digital files resulting from common diagnostic testing such as
17 (B) “Records” include X-rays, magnetic resonance imaging
18 scans, computed tomography scans, computed axial tomography scans,
19 ultrasounds, and other diagnostic imaging commonly used and retained as part
20 of the medical records of a patient tools;
21 (B) Records documenting treatment administration,
22 medication administration, and activities of daily living; and
23 (C) All financial reports, cost reports, disclosure forms,
24 and other Medicaid records submitted or required to be retained in any rate
25 development or review process, reconciliation process, or actuarial process
26 required by the rules of Arkansas Medicaid Program or state law;
27 (11) "Serious physical injury" means a physical injury to an
28 endangered person or impaired person that:
29 (A) Creates a substantial risk of death; or
30 (B) Causes:
31 (i) Protracted disfigurement;
32 (ii) Protracted impairment of health; or
33 (iii) Loss or protracted impairment of the function
34 of any bodily member or organ; and
35 (12)(A) “Unlawful Medicaid participation” means participation in
36 the Arkansas Medicaid Program when an individual or organization is suspended
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1 from the Arkansas Medicaid Program or is on a state or federal excluded
2 Medicaid provider list.
3 (B) “Unlawful Medicaid participation” includes without
4 limitation when a suspended or excluded individual or organization:
5 (i) Is employed or contracting with a Medicaid
6 provider or managed care organization or otherwise associated with a Medicaid
7 provider or managed care organization for the purpose of providing or
8 supervising the provision of goods and services to Medicaid recipients;
9 (ii) Plays any role in the management of a Medicaid
10 provider directly as a manager or management company or indirectly as a
11 consultant or advisor; or
12 (iii) Receives payment for administrative and
13 management services directly or indirectly related to patient care such as
14 processing Medicaid claims for payment, attending to services that assist or
15 support Medicaid recipients, or acting as a Medicaid consultant or advisor.
16
17 SECTION 4. Arkansas Code § 5-55-103 is amended to read as follows:
18 5-55-103. Unlawful acts — Classification.
19 (a)(1) It is unlawful for any person to commit Medicaid fraud as
20 prohibited by § 5-55-111.
21 (b)(2) Medicaid fraud is a:
22 (A) Class D felony if the aggregate amount of overpayment
23 resulting from a violation of Medicaid fraud, § 5-55-111 is one thousand
24 dollars ($1,000) or more but less than two thousand five hundred dollars
25 ($2,500);
26 (1)(B) Class C felony if the aggregate amount of payments
27 illegally claimed overpayment resulting from a violation of Medicaid fraud, §
28 5-55-111 is two thousand five hundred dollars ($2,500) or more but less than
29 five thousand dollars ($5,000);
30 (2)(C) Class B felony if the aggregate amount of payments
31 illegally claimed overpayment resulting from a violation of Medicaid fraud, §
32 5-55-111 is five thousand dollars ($5,000) or more but less than twenty-five
33 thousand dollars ($25,000); and
34 (3)(D) Class A felony if the aggregate amount of payments
35 illegally claimed overpayment resulting from a violation of Medicaid fraud, §
36 5-55-111 is twenty-five thousand dollars ($25,000) or more; or
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1 (E) Class A misdemeanor if the aggregate amount of
2 overpayment resulting from a violation of Medicaid fraud, § 5-55-111 is less
3 than one thousand dollars ($1,000).
4 (c) Otherwise, Medicaid fraud is a Class A misdemeanor.
5 (3)(A) It is unlawful to submit claims as prohibited by any
6 provision of § 5-55-111.
7 (B) If a claim is submitted as prohibited by Medicaid
8 fraud, § 5-55-111, but not paid, the state may bring a charge of attempt to
9 commit Medicaid fraud, § 5-55-111, in accordance with § 5-3-201.
10 (4)(A) The classification of Medicaid fraud, § 5-55-111, is
11 enhanced one (1) classification level if the Medicaid fraud, § 5-55-111,
12 causes serious physical injury to or the death of a Medicaid recipient.
13 (B) To seek the enhanced penalty permitted by this
14 section, the state shall charge the enhancement in the information or
15 indictment.
16 (b)(1) It is unlawful to fail to maintain records or documentation
17 required by the rules of the Arkansas Medicaid Program.
18 (2) A violation of subdivision (b)(1) of this section is a Class
19 D felony if the unavailability of records impairs or obstructs the
20 prosecution of a felony or a civil action under § 20-77-901 et seq. or the
21 Adult and Long-Term Care Facility Resident Maltreatment Act, § 12-12-1701 et
22 seq.
23 (c)(1) A single scheme or a series of similar violations of this
24 subchapter is a continuing course of conduct offense that may be treated and
25 charged as a single violation.
26 (2)(A) A charge based on aggregated acts of Medicaid fraud, § 5-
27 55-111, may be brought in any county where one (1) of the alleged acts
28 occurred or in Pulaski County.
29 (B) If there are different fraudulent schemes or
30 fraudulent acts involving different defendants, the charges may be brought
31 separately in any county where one (1) of the alleged acts occurred or in
32 Pulaski County.
33
34 SECTION 5. Arkansas Code § 5-55-104(c)-(i), concerning records related
35 to Medicaid fraud within the Medicaid Fraud Act, are amended to read as
36 follows:
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1 (c) The Attorney General and the prosecuting attorneys are allowed
2 access to all records of persons and Medicaid recipients under the Arkansas
3 Medicaid Program to which the secretary has access for the purpose of
4 investigating whether any person may have committed the crime of Medicaid
5 fraud or for use or potential use in any legal, administrative, or judicial
6 proceeding.
7 (d) Notwithstanding any other law to the contrary, no person is
8 subject to any civil or criminal liability for providing access to records to
9 the secretary, the Attorney General, or the prosecuting attorneys.
10 (e) Records obtained by the secretary, the Attorney General, or the
11 prosecuting attorneys pursuant to this subchapter are classified as
12 confidential information and are not subject to outside review or release by
13 any individual except when records are used or potentially to be used by any
14 government entity in any legal, administrative, or judicial proceeding.
15 (f)(1)(c)(1) A Medicaid provider or person providing healthcare goods
16 or services under the Arkansas Medicaid Program shall:
17 (A) Comply with the retention requirements established by
18 the rules of the Arkansas Medicaid Program for all records; and
19 (B) Maintain is required to maintain all records at least
20 for a period of not less than five (5) years from the date of claimed
21 provision of any goods or services to any Medicaid recipient.
22 (2)(A) The records described in subdivision (f)(1) (c)(1) of
23 this section shall be available for audit during regular business hours at
24 the address listed in the Medicaid provider agreement or where the healthcare
25 goods or services are provided.
26 (B) Closed records for inactive patients or clients may be
27 maintained in offsite storage if:
28 (i) The records can be produced within three (3)
29 working days of being served with a request for records, subpoena, or other
30 lawful notice from any agency with authority to audit the records; and
31 (ii) The records are maintained within the state.
32 (C) A Medicaid provider shall disclose upon request by the
33 Arkansas Medicaid Program, the Office of Medicaid Inspector General, or the
34 Medicaid Fraud Control Unit the location of any offsite storage facility or
35 server and the