Fraud enforcement is firing John Hubert ,Mary Cano,Noel Pena Imelda Perez Guevara would be a start for mail fraud tampering with govt records ......

e Overview Table of Contents
Controlling Fraud in Medicaid and Other Welfare Programs - S.B. 30

by Senator Zaffirini, et al.

House Sponsor: Representative Maxey

§ Requires the Texas Department of Human Services (DHS) to take a number of steps to improve the detection and enforcement of fraud under the food stamp and financial assistance program. These include:

§ improving the time it takes to establish an overpayment claim;

§ using the telephone to collect reimbursement from a person who received a benefit in error;

§ participating in the Federal Tax Refund Offset program;

§ keeping records of fraud cases referred for prosecution;

§ using a computer system to compare state information with federal immigrant and foreign visitor information to prevent people from illegally receiving public assistance benefits;

§ identifying Medicaid recipients who are eligible to receive similar assistance under Medicare and analyzing claims to ensure that allowable Medicare payments are sought first, and matching Medicaid claims to determine if other programs should appropriately pay the claims; and

§ identifying each Medicaid service under which the state is eligible for enhanced federal reimbursement and ensuring that the state receives the highest reimbursement.

Fraud Detection and Prevention

§ Requires the Health and Human Services Commission (HHSC) to set a minimum goal for DHS recovering a percentage of benefits that were granted in error.

§ Requires reduction in general revenue appropriation if DHS failed to meet its goal.

§ Allows HHSC to grant an award to an individual who reports fraud or abuse of funds in Medicaid.

§ Makes HHSC, through a new office of investigations and enforcement office, responsible for investigating and enforcing fraud in health and human services.

§ Requires HHSC and the office of the attorney general (OAG) to take a number of joint actions on Medicaid fraud. These include: signing a memorandum of understanding on developing and implementing joint written procedures for processing fraud cases; preparing reports on fraud detection and prosecution activities; signing a memorandum of understanding for HHSC to provide investigative support on certain cases, and cooperating with entities participating in "Operation Restore Trust," a federal fraud detection program.

§ Prohibits HHSC and the OAG from collecting investigation and attorney's fees unless the state gets a penalty, restitution, or other reimbursement. Requires HHSC to refer cases to local prosecuting attorneys if the office of the attorney general fails to act within 30 days.

§ Requires HHSC to develop a fraud detection training program.

§ Requires HHSC to use learning or neural network technology to identify and deter fraud in Medicaid.

§ Establishes the Medicaid and Public Assistance Fraud Oversight task force to assist HHSC in improving the efficiency of fraud investigations and collections.

§ Requires a number of actions and techniques by HHSC to improve fraud detection and prevention. These include:

§ compiling statistics on fraud, publicizing successful fraud prosecutions prevention programs, and ensuring that a toll-free number is available for reporting fraud;

§ developing a cost-effective method of identifying applicants for public assistance in Texas counties bordering other states who are already receiving assistance in those states; and

§ verifying automobile information used in determining eligibility and establishing a computer matching system with the Texas Department of Criminal Justice (TDCJ) to prevent someone in prison from illegally receiving public assistance benefits.

§ Consolidates staff and transfers responsibilities to HHSC from DHS' utilization and assessment review function and TDH's claims review and analysis group and policy and data analysis group.

§ Requires certain actions of DHS in fraud detection and enforcement. These include:

§ using private collection agents as an additional method to collect reimbursements for benefits granted in error;

§ studying the impact of expedited food stamp delivery on fraud; and

§ studying the feasibility of collecting benefits granted in error by garnishing wages or filing property liens.

§ Requires advance authorization for ambulance transportation except for emergencies.

§ Requires actions to ensure that a child's durable medical equipment provided under Medicaid is as prescribed, fits, and that the family is instructed in its use.

§ Provides for surety bonds for each provider of medical assistance in a type of service that has demonstrated significant potential for fraud and abuse.

§ Authorizes certain agencies to obtain criminal history records relating to a Medicaid provider or a person who applies as a provider.

§ Requires certain information and other contractual, disclosure, and audit provisions from managed care organizations that contract with Medicaid.

Fraud Enforcement

§ Requires HHSC to establish a pilot program for conducting random on-site reviews of persons who apply to provide Medicaid health care services.

§ Requires HHSC to develop a new provider contract for health care services that contains provisions designed to strengthen HHSC's ability to prevent Medicaid fraud.

§ Requires TDH to develop a competitive process for obtaining durable medical equipment.

§ Requires TDH to conduct an automated review of physician, laboratory, and radiology services to identify improper billing practices.

§ Establishes administrative penalties for false claims or failure, to provide health services required under contract.

§ Provides for deductions from lottery winnings for a person who has been determined to be delinquent in reimbursing DHS for errors in food stamp or financial assistance.

§ Provides that it is unlawful for managed care organizations contracting for Medicaid to fail to provide required Medicaid health care services, to fail to provide required information, to engage in fraudulent activity involving enrollment of a person, or to obstruct an investigation by the attorney general.

§ Increases civil penalties for violations and adds special penalties for incidents involving children, elderly or disabled persons.

§ Requires certain agency directors to suspend or revoke a provider agreement and other permits for a person who is found liable under this section. Bars persons found liable from providing Medicaid services for 10 years or longer.

§ Authorizes a person to bring a civil action under certain provisions relating to Medicaid fraud.

§ Provides for actions by a person who is discharged or discriminated against due to a lawful act under certain provisions on Medicaid fraud.

§ Establishes a range of criminal offenses (misdemeanors and felonies) for unlawful acts under certain provisions on Medicaid fraud, including revocation of certain health professional licenses for felony convictions.

§ Provides for suspension of drivers' licenses or recreational licenses issued by the Parks and Wildlife Department for failure to reimburse DHS for an error in food stamps or financial assistance in excess of $250.
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Increased Penalties for Medicaid Fraud - H.B. 1637

by Representative Alvarado

Senate Sponsor: Senator Carona

§ Increases civil penalties if a false statement or representation under a Medicaid claim results in injury to an elderly person, a disabled person, or a person younger than 18 years of age.

§ Bars a person found liable for this action from providing or arranging for Medicaid health care services for 10 years.

§ Authorizes a period of ineligibility longer than 10 years to be provided by rule.

§ Exempts a person who operates a nursing facility from both Medicaid ineligibility provisions.

§ Permanently prohibits a person from providing or arranging for Medicaid health care services if the person is convicted of Medicaid fraud, and the person's fraudulent act results in injury to an elderly person, a disabled person, or a person younger than 18 years of age.

§ Makes a person who commits certain unlawful acts liable to the state for an increased civil penalty for each act that results in injury to an elderly person, a disabled person, or a person younger than 18 years of age.

§ Requires commissioners or directors of certain human services or health care regulatory agencies to suspend or revoke provider agreements, permits, licenses, or certifications, if a person has been found liable for civil remedies under Medicaid fraud.

§ Exempts a person who operates a nursing facility from mandatory suspension or revocation, but gives the commissioners or directors authority to suspend or revoke provider agreements, permits, licenses, or certifications.

§ Prohibits a person found liable for civil remedies under Medicaid fraud from providing or arranging for Medicaid health care services for 10 years.

§ Exempts a person who operates a nursing facility from both Medicaid ineligibility provisions.

§ Authorizes professional disciplinary actions under applicable licensing law or rules for a person who commits an unlawful act.

§ Requires agencies to request a waiver or authorization from a federal agency if necessary for implementing these provisions, and authorizes a delay in implementing provisions if a federal waiver is required.
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DHS Fraud Prevention and Detection - H.B. 2123

by Representatives Maxey and Naishtat

Senate Sponsor: Senator Moncrief

§ Requires the Texas Department of Human Services (DHS) to develop and implement policies and procedures designed to improve DHS administered entitlement programs that use electronic benefits transfer (EBT) cards.

§ Requires DHS and the comptroller to coordinate their efforts to cross-train staff whose duties include fraud prevention and detection.

§ Requires local law enforcement agencies that seize an EBT card to immediately notify DHS, and return the card.

§ Requires the EBT system operator and installer to report to DHS and the United States Department of Agriculture suspicious activity relating to a retailer's participation in the food stamp program.

§ Requires DHS to compare a retailer's food stamp sales volume with the retailer's total food sales to determine whether the retailer is eligible to receive free point-of-sale terminals.

§ Requires DHS, through the use of a computerized matching system, to at least semiannually compare department information relating to food stamp transactions with comparable information from the comptroller and other appropriate state agencies. Requires all entities to take necessary measures to keep information confidential.

§ Requires DHS to close certain accounts which have not been used by the account holder during the preceding 12 months.

"Confession of error" by John Cornyn

Dallas Criminal Defense Lawyer

Every attorney has an ethical obligation to protect the confidential information of a client. Confidential information includes both privileged and unprivileged client information. Privileged information means information that is protected by Rule 503 of the Texas Rules of Criminal Evidence, Rule 503 of the Texas Rules of Civil Evidence, or Rule 501 of the Federal Rules of Evidence. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, which is acquired by the lawyer during the course of or by reason of the representation.

An attorney must not knowingly:

1. Reveal confidential information of a client or former client to a person that the client has instructed is not to receive the information or to anyone else, other than the client, the client's representatives, or the members, associates, or employees of the attorney's law firm;
2. Use a client's confidential information to the disadvantage of the client unless such use is with the client's consent;
3. Use confidential information of a former client to that client's disadvantage after the representation is concluded unless it is with the former client's consent or the information has become generally known; or
4. Use privileged information of a client for the advantage of a lawyer or of a third person unless it is with the client's consent.

There are certain exceptions to the general proscription against an attorney revealing confidential information of a client. A lawyer may reveal confidential information:

1. When the client expressly authorizes the disclosure for the purpose of carrying out representation.
2. When the client consents to the disclosure after consultation.
3. To the client, the client's representatives, or the members, associates, and employee's of the lawyer's firm, except when otherwise instructed by the client.
4. When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.
5. To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.
6. To establish a defense to a criminal charge, civil complaint, or disciplinary complaint against the lawyer or the lawyer's associates based on conduct involving the client or the representation of the client.
7. When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.
8. To the extent the revelation reasonably appears necessary to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used.

A lawyer also may reveal unprivileged client information when the lawyer is impliedly authorized to do so in order to carry out the representation or when the lawyer has reason to believe it is necessary to do so in order to:

1. Carry out the representation effectively;
2. Defend the lawyer or the lawyer's employees or associates against a claim of wrongful conduct;
3. Respond to allegations in any proceeding concerning the lawyer's representation of the client; or
4. Prove the services rendered to a client, or the reasonable value of services, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.

There are certain circumstances under which an attorney must reveal confidential information. When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer must reveal the information to the extent the disclosure reasonably appears necessary to prevent the client from committing the criminal or fraudulent act. Additionally, a lawyer must reveal confidential information when required to do so by Disciplinary Rules 3.03(a)(2), 3.03(b), or 4.01(b).

Lawyer-Client Privilege

Privilege Defined

The lawyer-client privilege protects certain confidential communications made for the purpose of facilitating the rendition of professional legal services to a client. The rules of criminal evidence recognize a client's right to prevent the disclosure of such information. Since the point of the rule is to protect the client's right to prevent disclosure, a violation of the privilege may not lead to any relief from pending prosecution if no disclosure results from the violation. A client may also prevent the disclosure of any other fact that came to the knowledge of the lawyer or the lawyer's representative by reason of the lawyer-client relationship.

There is also a criminal work product doctrine that may serve to shelter materials prepared during a criminal case from discovery in a civil proceeding. This form of the lawyer-client privilege protects materials such as memoranda, reports, interviews, mental impressions, conclusions, opinions, legal theories, and other materials prepared and assembled for litigation and in anticipation of litigation

Essential Elements

A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications made for the purpose of facilitating the rendition of professional legal services to the client that are made in any of the following ways:

1. Between the client or the client's representative and the lawyer or the lawyer's representative;
2. Between the lawyer and the lawyer's representative;
3. By the client, the client's representative, the lawyer, or the lawyer's representative to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein;
4. Between representatives of the client or between the client and a representative of the client; or
5. Among lawyers and their representatives representing the same client.

For purposes of this privilege, a client is a person, public officer, corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer. A client's representative is one who has authority to obtain professional legal services on behalf of the client, or to act on the client's behalf as a result of advice rendered pursuant to such professional legal services. The term lawyer refers to a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation. A lawyer's representative is one employed by the lawyer to assist him or her in the rendition of professional legal services. This includes an accountant who is reasonably necessary for the lawyer's rendition of professional legal services.

A communication is confidential if it is not intended to be disclosed to third persons other than those to whom the disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. Thus, the presence of a third person does not waive the privilege if the third person has a common legal interest with respect to the subject matter of the communication.

It is clear that there must be some form of professional relationship between the client and the lawyer for the lawyer-client privilege to apply. This does not mean that the attorney must actually have undertaken representation for the privilege to operate. The privilege arises when the client ``consults a lawyer with a view to obtaining professional legal services''. Thus, before logically reaching any question concerning the application of the lawyer-client privilege, a determination must be made that the claim of privilege is being made by the lawyer on behalf of a client. Whether an attorney-client relationship exists is a question for the trial court to decide, and the court's ruling will ordinarily not be disturbed on appeal.

As mentioned above, the privilege applies not only to confidential communications with the lawyer, but also to such communications with the lawyer's representatives. However, the nonattorney to whom the disclosure is made must have been employed by the lawyer to assist the lawyer in the rendition of legal services. For example, the lawyer-client privilege does not apply to a communication with a nonattorney such as a psychiatrist who has been appointed by the court to conduct an independent examination. However, a psychiatrist employed by a lawyer falls under lawyer-client privilege.

Assuming the lawyer-client relationship is established, the privilege applies only to protect communications that are deemed to be confidential. The circumstances surrounding the communication are considered in determining if it was intended to be confidential. If the desire for confidentiality is absent, the reason for the privilege is also absent. The communication need not be oral to be protected. Written communications or preexisting documents that would be privileged from production in the hands of the client will be privileged from production in the hands of the attorney if they were transferred for the purpose of obtaining legal advice.

In order for the lawyer-client privilege to apply, the prosecution must be seeking the disclosure of the substance of a confidential communication. Therefore, the protection of the lawyer-client privilege is not invaded if no communication is involved. For example, the privilege does not apply if testimony is sought merely regarding the presence of the attorney at a particular stage of the prosecution, if the attorney is asked about matters of public record, or if testimony is sought from the attorney regarding his or her relationship with the client outside the attorney-client relationship, such as when the attorney acted as the client's bondsman. Similarly, there is no violation when a defendant's former attorney is called to testify at a retrospective competency hearing, as long as no confidential communications are revealed. A defendant's physical actions toward an attorney may also fall outside the purview of the privilege.

However, under some circumstances, information that would not normally be privileged may be protected. For example, although the identity of a client or information involving the receipt of a fee from a client is not usually protected by the privilege, if the release of such information would automatically lead to a conviction or indictment of the client, the information may be privileged. This principle comes into play only if the third party who has paid the defendant's fee is also a client of the defendant's attorney. The lawyer-client privilege shields the identity of a client or fee information only when the revelation of such information would disclose other privileged communications, such as the confidential motive for retention of the attorney.

The information contained in this web site is intended to convey general information about David Finn, PC. It should not be construed as legal advice or opinion. It is not an offer to represent you, nor is it intended to create an attorney-client relationship. Any email sent via the Internet to David Finn, PC using email addresses listed in this web site would not be confidential and would not create an attorney-client relationship.