2007 Legislation
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HOUSE BILL NO. 166 – Medicaid fraud control unit

HOUSE BILL NO. 166

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Bill Status



H0166aa,aaS...........................................by HEALTH AND WELFARE
MEDICAID FRAUD CONTROL UNIT - Amends and adds to existing law to provide
for a Medicaid Fraud Program in the Department of Health and Welfare;  to
provide referral and compliance requirements; to provide for a minimum for
cost recovery; to provide for record retention requirements; to provide for
criminal penalties; to establish in the Office of the Attorney General the
Medicaid Fraud Control Unit; to provide for costs and reasonable attorney's
fees; to require persons asking to be excused from attending, producing or
testifying on the grounds of self-incrimination to comply with the request;
to provide for the use of information provided by persons privileged to
withhold information; to provide authority to the attorney general and any
prosecuting attorney to issue subpoenas and compel testimony from
custodians; to provide peace officer status to investigators employed by
the attorney general; and to revise duties of the attorney general.

02/09    House intro - 1st rdg - to printing
02/12    Rpt prt - to Health/Wel
02/21    Rpt out - to Gen Ord
02/22    Rpt out amen - to engros
02/23    Rpt engros - 1st rdg - to 2nd rdg as amen
02/26    2nd rdg - to 3rd rdg as amen
02/28    3rd rdg as amen - PASSED - 69-0-1
      AYES -- Anderson, Andrus, Barrett, Bayer, Bedke, Bell, Bilbao, Black,
      Block, Bock, Boe, Bolz, Brackett, Bradford, Chadderdon, Chavez, Chew,
      Clark, Collins, Crane, Durst, Edmunson, Eskridge, Hagedorn, Hart,
      Harwood, Henbest, Henderson, Jaquet, Killen, King, Kren, Labrador,
      Lake, LeFavour, Loertscher, Luker, Marriott, Mathews, McGeachin,
      Mortimer, Moyle, Nielsen, Nonini, Pasley-Stuart, Patrick, Pence,
      Raybould, Ring, Ringo, Ruchti, Rusche, Sayler, Schaefer, Shepherd(2),
      Shepherd(8), Shirley, Shively, Smith(30), Smith(24), Snodgrass,
      Stevenson, Thayn, Trail, Vander Woude, Wills, Wood(27), Wood(35), Mr.
      Speaker
      NAYS -- None
      Absent and excused -- Roberts
    Floor Sponsor - Mathews
    Title apvd - to Senate
03/01    Senate intro - 1st rdg - to Health/Wel
03/08    Rpt out - rec d/p - to 2nd rdg
03/09    2nd rdg - to 3rd rdg
03/15    To 14th Ord
03/16    Rpt out amen - to 1st rdg as amen
03/19    1st rdg - to 2nd rdg as amen
    Rls susp - PASSED - 32-0-3
      AYES -- Andreason, Bair, Bastian, Bilyeu, Broadsword, Burkett,
      Cameron, Coiner, Corder, Darrington, Davis, Fulcher, Geddes, Goedde,
      Hammond, Heinrich, Hill, Jorgenson, Kelly, Keough, Langhorst, Little,
      Lodge, McGee, McKague, McKenzie, Pearce, Richardson, Schroeder,
      Siddoway, Stegner, Werk
      NAYS -- None
      Absent and excused -- Gannon, Malepeai, Stennett
    Floor Sponsors - Lodge, Cameron & McGee
    Title apvd - to House
03/20    House concurred in Senate amens - to engros
03/21    Rpt engros - 1st rdg - to 2nd rdg as amen
03/22    2nd rdg - to 3rd rdg as amen
03/26    3rd rdg as amen - PASSED - 68-0-2
      AYES -- Andrus, Barrett, Bayer, Bedke, Bell, Bilbao, Black, Block,
      Bock, Boe, Bolz, Brackett, Bradford, Chadderdon, Chavez, Chew, Clark,
      Collins, Crane, Durst, Eskridge, Hagedorn, Hart, Harwood, Henbest,
      Henderson, Jaquet, Killen, King, Kren, Labrador, Lake, LeFavour,
      Loertscher, Luker, Marriott, Mathews, McGeachin, Mortimer, Moyle,
      Nielsen, Nonini, Pasley-Stuart, Patrick, Pence, Raybould, Ring,
      Ringo, Roberts, Ruchti, Rusche, Sayler, Schaefer, Shepherd(2),
      Shepherd(8), Shirley, Shively, Smith(30), Smith(24), Snodgrass,
      Stevenson, Thayn, Trail, Vander Woude, Wills, Wood(27), Wood(35), Mr.
      Speaker
      NAYS -- None
      Absent and excused -- Anderson, Edmunson
    Floor Sponsor - Mathews
    Title apvd - to enrol
03/27    Rpt enrol - Sp signed
03/28    Pres signed - To Governor
04/02    Governor signed
         Session Law Chapter 341
         Effective: 07/01/07

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 166
                                                                        
                              BY HEALTH AND WELFARE COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO MEDICAID; AMENDING SECTION 15-8-103, IDAHO CODE, TO MAKE A TECHNI-
  3        CAL CORRECTION; AMENDING SECTION 56-209h, IDAHO CODE, TO DEFINE A TERM, TO
  4        PROVIDE FOR A MEDICAID FRAUD PROGRAM IN THE DEPARTMENT OF HEALTH AND  WEL-
  5        FARE  AND  THE  SCOPE  OF  SUCH  PROGRAM, TO REMOVE A TIME REQUIREMENT, TO
  6        REMOVE A CONDITION FOR ACTION, TO PROVIDE FOR  ACTION  UPON  REFERRAL,  TO
  7        PROVIDE REFERRAL AND COMPLIANCE REQUIREMENTS, TO PROVIDE FOR A MINIMUM FOR
  8        COST  RECOVERY  AND  TO  MAKE  A TECHNICAL CORRECTION; AMENDING CHAPTER 2,
  9        TITLE 56, IDAHO CODE, BY THE ADDITION OF NEW SECTIONS 56-209o AND  56-226,
 10        IDAHO  CODE,  TO PROVIDE FOR RECORD RETENTION REQUIREMENTS, TO PROVIDE FOR
 11        CRIMINAL PENALTIES, TO ESTABLISH IN THE OFFICE OF THE ATTORNEY GENERAL THE
 12        MEDICAID FRAUD CONTROL UNIT, TO PROVIDE THE DUTIES, AUTHORITY AND  RESPON-
 13        SIBILITIES  OF  THE  UNIT, TO PROVIDE EXCLUSIVE CONTROL OF THE UNIT AND TO
 14        DEFINE TERMS; AMENDING SECTION 56-227, IDAHO CODE, TO REMOVE A REQUIREMENT
 15        FOR THE DEPARTMENT OF HEALTH AND WELFARE TO ESTABLISH AND OPERATE A  FRAUD
 16        CONTROL  PROGRAM; AMENDING SECTION 56-227B, IDAHO CODE, TO PROVIDE FOR THE
 17        RIGHT OF THE ATTORNEY GENERAL TO CAUSE CERTAIN LEGAL ACTION TO  BE  UNDER-
 18        TAKEN,  TO  PROVIDE FOR COSTS AND REASONABLE ATTORNEY'S FEES TO BE AWARDED
 19        TO THE PREVAILING PARTY, TO PROVIDE  FOR  THE  DISPOSITION  OF  COSTS  AND
 20        ATTORNEY'S  FEES  AND  TO  MAKE  A  TECHNICAL CORRECTION; AMENDING SECTION
 21        56-227C, IDAHO CODE, TO REQUIRE PERSONS ASKING TO BE EXCUSED FROM  ATTEND-
 22        ING,  PRODUCING OR TESTIFYING ON THE GROUNDS OF SELF-INCRIMINATION TO COM-
 23        PLY WITH THE REQUEST, TO PROVIDE FOR THE USE OF  INFORMATION  PROVIDED  BY
 24        PERSONS  PRIVILEGED  TO  WITHHOLD INFORMATION, TO PROVIDE AUTHORITY TO THE
 25        ATTORNEY GENERAL AND ANY PROSECUTING ATTORNEY TO ISSUE SUBPOENAS AND  COM-
 26        PEL  TESTIMONY  FROM CUSTODIANS, TO PROVIDE SUBPOENA REQUIREMENTS, TO PRO-
 27        VIDE PROCEDURE AND GROUNDS FOR MODIFYING OR QUASHING  A  SUBPOENA  AND  TO
 28        PROVIDE  PEACE  OFFICER  STATUS  TO INVESTIGATORS EMPLOYED BY THE ATTORNEY
 29        GENERAL; AMENDING SECTION 56-227D,  IDAHO  CODE,  TO  PROVIDE  ENFORCEMENT
 30        AUTHORITY TO THE DIRECTOR OF THE DEPARTMENT OF HEALTH AND WELFARE, TO PRO-
 31        VIDE THAT SUCH ENFORCEMENT IS NOT THE RESPONSIBILITY OF THE MEDICAID FRAUD
 32        UNIT  AND  TO  MAKE  TECHNICAL  CORRECTIONS; AMENDING CHAPTER 2, TITLE 56,
 33        IDAHO CODE, BY THE ADDITION OF A NEW SECTION 56-227E, IDAHO CODE, TO  PRO-
 34        VIDE A DESCRIPTION OF OBSTRUCTION OF INVESTIGATION AND TO PROVIDE CRIMINAL
 35        PENALTIES;  AND  AMENDING SECTION 67-1401, IDAHO CODE, TO REVISE DUTIES OF
 36        THE ATTORNEY GENERAL AND TO MAKE TECHNICAL CORRECTIONS.
                                                                        
 37    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 38        SECTION 1.  That Section 15-8-103, Idaho Code, be, and the same is  hereby
 39    amended to read as follows:
                                                                        
 40        15-8-103.  DEFINITIONS.  The  definitions in this section apply throughout
 41    this chapter unless the context clearly requires otherwise:
 42        (1)  "Matter" includes any issue, question or dispute involving:
 43        (a)  The determination of any  class  of  creditors,  devisees,  legatees,
                                                                        
                                       2
                                                                        
  1        heirs,  next  of  kin,  or  other  persons interested in an estate, trust,
  2        nonprobate asset, or with respect to any other asset or property  interest
  3        passing at death;
  4        (b)  The  direction  of  a  personal representative or trustee to do or to
  5        abstain from doing any act in a fiduciary capacity;
  6        (c)  The determination of any question arising in the administration of an
  7        estate or trust, or with respect to any nonprobate asset, or with  respect
  8        to  any  other  asset  or  property  interest  passing  at death, that may
  9        include, without limitation, questions relating to:
 10             (i)   The construction of wills, trusts, devolution  agreements,  and
 11             other writings;
 12             (ii)  A change of personal representative or trustee;
 13             (iii) A change of the situs of a trust;
 14             (iv)  An accounting from a personal representative or trustee; or
 15             (v)   The  determination  of  fees  for  a personal representative or
 16             trustee;
 17        (d)  The grant to a personal representative or trustee of any necessary or
 18        desirable power not otherwise granted in the governing instrument or given
 19        by law;
 20        (e)  The amendment, reformation, or conformation of  a  will  or  a  trust
 21        instrument  to  comply  with statutes and regulations of the United States
 22        internal revenue service in order to more efficiently allocate  exemptions
 23        or  to  achieve  qualification  for  deductions,  elections, and other tax
 24        requirements including, but not limited to, the qualification of any  gift
 25        thereunder  for  the benefit of a surviving spouse who is not a citizen of
 26        the United States for the estate tax marital deduction permitted  by  fed-
 27        eral  law,  including  the  addition  of  mandatory  governing  instrument
 28        requirements  for  a  qualified  domestic trust under section 2056A of the
 29        Internal Revenue Code, the qualification of any gift thereunder as a qual-
 30        ified conservation easement as permitted by federal law, or the qualifica-
 31        tion of any gift for the charitable estate tax deduction permitted by fed-
 32        eral  law,  including  the  addition  of  mandatory  governing  instrument
 33        requirements for a charitable remainder trust; and
 34        (f)  With respect to any nonprobate asset, or with respect  to  any  other
 35        asset  or  property interest passing at death, including actual joint ten-
 36        ancy property, property subject to a devolution agreement, or assets  sub-
 37        ject to a pay on death or transfer on death designation:
 38             (i)   The  ascertaining  of any class of creditors or others for pur-
 39             poses of section 15-6-107, Idaho Code;
 40             (ii)  The ordering of a custodian of any of  the  decedent's  records
 41             relating  to  a nonprobate asset to do or abstain from doing any par-
 42             ticular act with respect to those records;
 43             (iii) The determination of any question arising in the administration
 44             of a nonprobate asset under section 15-6-107, Idaho Code;
 45             (iv)  The determination of any questions relating to  the  abatement,
 46             rights  of creditors, or other matter relating to the administration,
 47             settlement, or final disposition of a nonprobate  asset  under  title
 48             15, Idaho Code; and
 49             (v)   The  resolution of any matter referencing this chapter, includ-
 50             ing a determination of any questions relating  to  the  ownership  or
 51             distribution  of an individual retirement account on the death of the
 52             spouse of the account holder as contemplated by  section  11-604A(6),
 53             Idaho Code;
 54        (g)  The  resolution  of any other matter that could affect the nonprobate
 55        asset.
                                                                        
                                       3
                                                                        
  1        (2)  "Nonprobate assets" means assets that are covered by chapter 6, title
  2    15, Idaho Code.
  3        (3)  "Party" or "parties" means each of the following persons who  has  an
  4    interest  in  the  subject  of  the  particular  proceeding and whose name and
  5    address are known to, or are reasonably ascertainable by, the petitioner:
  6        (a)  The trustor if living;
  7        (b)  The trustee;
  8        (c)  The personal representative;
  9        (d)  An heir;
 10        (e)  A beneficiary, including devisees, legatees, and trust beneficiaries;
 11        (f)  The surviving spouse of a decedent with respect to his or her  inter-
 12        est in the decedent's property;
 13        (g)  A guardian ad litem;
 14        (h)  A creditor;
 15        (i)  Any other person who has an interest in the subject of the particular
 16        proceeding;
 17        (j)  The  attorney  general  if  required under section 67-1401(5.), Idaho
 18        Code;
 19        (k)  Any duly appointed and acting legal representative of a party such as
 20        a guardian, conservator, special representative, or attorney in fact;
 21        (l)  Where applicable, the virtual representative of any person  described
 22        in  this  subsection  (3),  the giving of notice to whom would meet notice
 23        requirements as provided in section 15-8-204, Idaho Code; and
 24        (m)  The owner or  the  personal  representative  of  the  estate  of  the
 25        deceased owner of the nonprobate asset that is the subject of the particu-
 26        lar proceeding, if the subject of the particular proceeding relates to the
 27        beneficiary's  liability to a decedent's estate or creditors under section
 28        15-6-107, Idaho Code.
 29        (4)  "Persons interested in the estate or trust"  means  the  trustor,  if
 30    living,  all  persons  beneficially interested in the estate or trust, persons
 31    holding powers over the trust or estate assets, the attorney  general  in  the
 32    case  of  any charitable trust where the attorney general would be a necessary
 33    party to judicial proceedings concerning the trust, and any personal represen-
 34    tative or trustee of the estate or trust.
 35        (5)  "Representative" and other similar terms refer to a person who virtu-
 36    ally represents another person under section 15-8-205, Idaho Code.
 37        (6)  "Trustee" means any acting and qualified trustee of the trust.
                                                                        
 38        SECTION 2.  That Section 56-209h, Idaho Code, be, and the same  is  hereby
 39    amended to read as follows:
                                                                        
 40        56-209h.  ADMINISTRATIVE  REMEDIES.  (1) Definitions. For purposes of this
 41    section:
 42        (a)  "Abuse" or "abusive" means provider practices that  are  inconsistent
 43        with sound fiscal, business, or medical practices, and result in an unnec-
 44        essary  cost  to the medical assistance program, in reimbursement for ser-
 45        vices that are not medically necessary or that fail to meet professionally
 46        recognized standards for health care, or in physical harm, pain or  mental
 47        anguish to a medical assistance recipient.
 48        (b)  "Claim"  means any request or demand for payment of items or services
 49        under the state's medical assistance program, whether under a contract  or
 50        otherwise.
 51        (c)  "Fraud"  or "Ffraudulent" means an intentional deception or misrepre-
 52        sentation made by a person with the knowledge  that  the  deception  could
 53        result in some unauthorized benefit to himself or some other person.
                                                                        
                                       4
                                                                        
  1        (d)  "Knowingly,"  "known"  or  "with knowledge" means that a person, with
  2        respect to information or an action:
  3             (i)   Has actual knowledge of the information or action; or
  4             (ii)  Acts in deliberate ignorance of the truth  or  falsity  of  the
  5             information or the correctness or incorrectness of the action; or
  6             (iii) Acts  in  reckless  disregard  of  the  truth or falsity of the
  7             information or the correctness or incorrectness of the action.
  8        (e)  "Managing employee" means a general manager, business manager, admin-
  9        istrator, director or other individual who exercises operational or  mana-
 10        gerial control over, or who directly or indirectly conducts the day-to-day
 11        operation of, an institution, organization or agency.
 12        (f)  "Medicaid  fraud control unit" means that medicaid fraud control unit
 13        as provided for in section 56-226, Idaho Code.
 14        (g)  "Ownership or control interest" means a person or entity that:
 15             (i)   Has an ownership interest totaling twenty-five percent (25%) or
 16             more in an entity; or
 17             (ii)  Is an officer or director of an entity that is organized  as  a
 18             corporation; or
 19             (iii) Is  a  partner in an entity that is organized as a partnership;
 20             or
 21             (iv)  Is a managing member in an entity that is organized as  a  lim-
 22             ited liability company.
 23        (2)  The  department  shall  establish and operate an administrative fraud
 24    control program to enforce violations of the provisions of this chapter and of
 25    the state plan pursuant to subchapters XIX  and  XXI,  chapter  7,  title  42,
 26    U.S.C., that are outside the scope of the duties of the medicaid fraud control
 27    unit and to render and receive referrals from and to said unit.
 28        (3)  Review  of  dDocumentation  of  services.  All  claims  submitted  by
 29    providers for payment are subject to prepayment and postpayment review as des-
 30    ignated  by rule. Except as otherwise provided by rule, providers shall gener-
 31    ate documentation at the time of service sufficient to support each claim. and
 32    shall retain the documentation for a minimum of five (5) years from  the  date
 33    the  item or service was provided. The department or authorized agent shall be
 34    given immediate access to such documentation upon written request.
 35        (34)  Immediate action. In the event that the department identifies a sus-
 36    pected case of fraud or abuse, and the department has reason to  believe  that
 37    payments  made  during  the  investigation  may be difficult or impractical to
 38    recover, the department may suspend or withhold payments to the provider pend-
 39    ing investigation. In the event that the  department  identifies  a  suspected
 40    case  of  fraud  or abuse and it determines that it is necessary to prevent or
 41    avoid immediate danger to the public health or safety, the department may sum-
 42    marily suspend a provider agreement pending investigation. When payments  have
 43    been  suspended or withheld or a provider agreement suspended pending investi-
 44    gation, the department shall provide for a hearing within thirty (30) days  of
 45    receipt of any duly filed notice of appeal.
 46        (45)  Recovery  of  payments.  Upon referral of a matter from the medicaid
 47    fraud control unit,  or iIf it is determined by the department that any condi-
 48    tion of payment contained in rule, regulation, statute, or provider  agreement
 49    was not met, the department may initiate administrative proceedings to recover
 50    any payments made for items or services. Interest shall accrue on overpayments
 51    at  the  statutory  rate  set forth in section 28-22-104, Idaho Code, from the
 52    date of final determination of the amount owed for items or services until the
 53    date of recovery.
 54        (56)  Provider status. The department may terminate the provider agreement
 55    or otherwise deny provider status to any individual or entity who:
                                                                        
                                       5
                                                                        
  1        (a)  Submits a claim with knowledge that the claim is incorrect, including
  2        reporting costs as allowable which were known to be disallowed in a previ-
  3        ous audit, unless the provider clearly indicates that the  item  is  being
  4        claimed  to  establish  the basis for an appeal and each disputed item and
  5        amount is specifically identified; or
  6        (b)  Submits a fraudulent claim; or
  7        (c)  Knowingly makes a false statement or representation of material  fact
  8        in  any document required to be maintained or submitted to the department;
  9        or
 10        (d)  Submits a claim for an item or service known to be medically unneces-
 11        sary; or
 12        (e)  Fails to provide, upon written request by the  department,  immediate
 13        access to documentation required to be maintained; or
 14        (f)  Fails  repeatedly or substantially to comply with the rules and regu-
 15        lations governing medical assistance payments; or
 16        (g)  Knowingly violates any material term or  condition  of  its  provider
 17        agreement; or
 18        (h)  Has  failed  to  repay,  or  was  a  "managing  employee"  or  had an
 19        "ownership or control interest" in any entity that has  failed  to  repay,
 20        any overpayments or claims previously found to have been obtained contrary
 21        to statute, rule, regulation or provider agreement; or
 22        (i)  Has  been found, or was a "managing employee" in any entity which has
 23        been found, to have engaged in fraudulent conduct or  abusive  conduct  in
 24        connection with the delivery of health care items or services; or
 25        (j)  Fails  to meet the qualifications specifically required by rule or by
 26        any applicable licensing board.
 27    Any individual or entity denied provider status under this section may be pre-
 28    cluded from participating as a provider in the medical assistance program  for
 29    up to five (5) years from the date the department's action becomes final.
 30        (7)  The  department must refer all cases of suspected fraud to the medic-
 31    aid fraud control unit and shall promptly comply with  any  request  from  the
 32    medicaid  fraud  control  unit for access to and free copies of any records or
 33    information kept by the  department  or  its  contractors,  computerized  data
 34    stored  by  the  department  or  its  contractors, and any information kept by
 35    providers to which the department is authorized access by law.
 36        (68)  Civil monetary penalties. The department may also assess civil mone-
 37    tary penalties against a provider and any  officer,  director,  owner,  and/or
 38    managing  employee of a provider for conduct identified in subsections (56)(a)
 39    through (56)(i) of this section. The amount of the penalties shall  be  up  to
 40    one  thousand  dollars  ($1,000)  for each item or service improperly claimed,
 41    except that in the case of multiple penalties the department  may  reduce  the
 42    penalties  to  not  less  than twenty-five percent (25%) of the amount of each
 43    item or service improperly claimed if an amount  can  be  readily  determined.
 44    Each  line  item of a claim, or cost on a cost report is considered a separate
 45    claim. These penalties are intended to be remedial, recovering  at  a  minimum
 46    costs  of investigation and administrative review, and placing the costs asso-
 47    ciated with noncompliance on the offending provider.
 48        (79)  Exclusion. Any individual or entity convicted of a criminal  offense
 49    related  to the delivery of an item or service under any state or federal pro-
 50    gram shall be excluded from program participation for a  period  of  not  less
 51    than  ten (10) years. Unless otherwise provided in this section or required by
 52    federal law, the department may exclude any individual or entity for a  period
 53    of  not  less than one (1) year for any conduct for which the secretary of the
 54    department of health and human services or designee could exclude an  individ-
 55    ual or entity.
                                                                        
                                       6
                                                                        
  1        (810) Adoption of rules. The department shall promulgate such rules as are
  2    necessary to carry out the policies and purposes of this section.
                                                                        
  3        SECTION  3.  That  Chapter  2,  Title  56, Idaho Code, be, and the same is
  4    hereby amended by the addition thereto of a NEW SECTION, to be known and  des-
  5    ignated as Section 56-209o, Idaho Code, and to read as follows:
                                                                        
  6        56-209o.  FAILURE  TO  RETAIN  RECORDS.  (1)  Whoever receives payment for
  7    treatment, services or goods under the provisions of this chapter or under the
  8    state plan pursuant to subchapter XIX or XXI, chapter  7,  title  42,  U.S.C.,
  9    shall  retain for a period of at least five (5) years all medical and business
 10    records relating to:
 11        (a)  The treatment or care of any recipient;
 12        (b)  Services or goods provided to any recipient;
 13        (c)  Rates paid by the department under  the  program  on  behalf  of  any
 14        recipient; and
 15        (d)  Any  records  required to be maintained by rule of the department for
 16        administration of the medicaid program.
 17        (2)  It shall be unlawful to intentionally  fail  to  retain  the  records
 18    specified  in subsection (1) of this section for a period of at least five (5)
 19    years from the date payment was claimed or received, whichever is later, or to
 20    knowingly destroy or cause the records specified in  subsection  (1)  of  this
 21    section  to  be  destroyed  within  five  (5)  years from the date payment was
 22    claimed or received, whichever is  later.  Any  person  who  fails  to  retain
 23    records  or  destroys records or causes records to be destroyed as provided in
 24    this subsection (2) shall be subject to the following criminal sanctions:
 25        (a)  If the treatment, services  or  goods  for  which  records  were  not
 26        retained  or  for which records were destroyed amount to not more than one
 27        thousand dollars ($1,000), the person shall be guilty of a misdemeanor and
 28        shall be sentenced pursuant to section 18-113, Idaho Code.
 29        (b)  If the value of the treatment, services or goods  for  which  records
 30        were  not  retained  or  for which records were destroyed is more than one
 31        thousand dollars ($1,000), the person shall be  guilty  of  a  felony  and
 32        shall be sentenced pursuant to section 18-112, Idaho Code.
 33        (c)  If  the  records  not  retained or destroyed were used in whole or in
 34        part to determine a rate of payment under the program, the person shall be
 35        guilty of a misdemeanor and shall be sentenced pursuant to section 18-113,
 36        Idaho Code.
                                                                        
 37        SECTION 4.  That Chapter 2, Title 56, Idaho Code,  be,  and  the  same  is
 38    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
 39    ignated as Section 56-226, Idaho Code, and to read as follows:
                                                                        
 40        56-226.  MEDICAID FRAUD CONTROL UNIT. (1) There is hereby  established  in
 41    the office of the attorney general the medicaid fraud control unit which shall
 42    have the authority and responsibilities as set forth in this section.
 43        (2)  Notwithstanding  the  authority  and  responsibility  granted  to the
 44    director of the department to provide for fraud control in  other  aspects  of
 45    public  assistance and public health programs, the medicaid fraud control unit
 46    shall have the authority and responsibility to conduct a statewide program for
 47    the investigation and prosecution of violations of all applicable  Idaho  laws
 48    pertaining  to fraud in the administration of the medicaid program, the provi-
 49    sion of medical assistance and in  the  activities  of  providers  of  medical
 50    assistance  and  services  under the state plan. Further, upon approval of the
 51    inspector general of the relevant federal agency, the office of  the  attorney
                                                                        
                                       7
                                                                        
  1    general  shall  have  the  authority  and responsibility to investigate and to
  2    prosecute violations of any aspect of the provision of  health  care  services
  3    and  activities  of  providers  of such services under any federal health care
  4    program as defined in 42 U.S.C. section 1320(a)-7b(f)1, if the suspected fraud
  5    or violation of law in such  investigation  or  prosecution  is  substantially
  6    related  to the state plan. The medicaid fraud control unit shall be under the
  7    exclusive control of the attorney general and be separate  and  distinct  from
  8    the department. No official from the department shall have authority to review
  9    or  override  the  prosecutorial  decisions made by the medicaid fraud control
 10    unit.
 11        (3)  The medicaid fraud control unit shall also:
 12        (a)  Review complaints of abuse  or  neglect  of  medicaid  recipients  in
 13        health  care  facilities  which receive payment pursuant to the state plan
 14        and may review complaints of the  misappropriation  of  patients'  private
 15        funds in such facilities; and
 16        (b)  Review complaints of abuse or neglect of medicaid recipients residing
 17        in a board and care facility.
 18        (4)  The  medicaid fraud control unit shall attempt to collect or refer to
 19    the department for collection overpayments  that  are  made  to  providers  of
 20    facilities  under  the  state plan or under any federal health care program to
 21    health care facilities that are the result of fraudulent  acts  and  that  are
 22    discovered by the medicaid fraud control unit in carrying out its responsibil-
 23    ities  under  this section. Notwithstanding any other provision of Idaho Code,
 24    all funds collected by the medicaid fraud control unit in accordance with this
 25    subsection (4) shall be deposited into the state general fund.
 26        (5)  The office of the attorney general shall employ such auditors, attor-
 27    neys, investigators and other personnel as are  necessary  to  carry  out  the
 28    responsibilities  of  the  medicaid fraud control unit as set forth under this
 29    section.
 30        (6)  The office of the attorney general shall submit to the  secretary  of
 31    the  federal  department of health and human services applications and reports
 32    containing such information as is determined by the secretary by regulation to
 33    be necessary to meet the requirements of subchapter XIX, chapter 7, title  42,
 34    U.S.C.
 35        (7)  In  carrying  out its duties and responsibilities under this section,
 36    the medicaid fraud control unit may:
 37        (a)  Request and receive the assistance of any prosecutor or law  enforce-
 38        ment  agency  in the investigation and prosecution of any violation of any
 39        applicable Idaho laws pertaining to fraud in  the  administration  of  the
 40        medicaid  program,  the provision of medical assistance and in the activi-
 41        ties of providers of medical assistance and services under the state plan;
 42        (b)  Enter upon the premises of any provider participating in the medicaid
 43        program to:
 44             (i)   Examine all accounts and records that are relevant in determin-
 45             ing the existence of fraud in the medicaid program;
 46             (ii)  Investigate alleged abuse or neglect of medicaid recipients; or
 47             (iii) Investigate  alleged  misappropriation  of  patients'   private
 48             funds.  The accounts or records of a nonmedicaid recipient may not be
 49             reviewed by, or turned over to the medicaid fraud control unit  with-
 50             out the patient's written consent or a court order; and
 51        (c)  Notwithstanding any other provision of law, upon written request have
 52        full  access  to  all records held by a medicaid provider, or by any other
 53        person on his or her behalf, that are relevant  to  the  determination  of
 54        the:
 55             (i)   Existence  of  civil violations or criminal offenses under this
                                                                        
                                       8
                                                                        
  1             chapter or related offenses;
  2             (ii)  Existence of medicaid recipient abuse, mistreatment or neglect;
  3             or
  4             (iii) Theft of medicaid recipient funds.
  5        No person holding such records shall refuse to provide the medicaid  fraud
  6        control    unit  access to such records for the purposes described in this
  7        section on the basis that release would violate the  medicaid  recipient's
  8        right  of  privacy  or  privilege against disclosure or use or any profes-
  9        sional or other privilege or right.
 10        (8)  The medicaid fraud control unit shall safeguard the privacy rights of
 11    medicaid recipients to avoid unnecessary disclosure  of  personal  information
 12    concerning  named  medicaid  recipients.  The  medicaid fraud control unit may
 13    transmit such information that it deems appropriate to the department  and  to
 14    other  agencies  concerned  with  the  regulation of health care facilities or
 15    health professionals.
 16        (9)  The attorney general shall have the authority to adopt  rules  neces-
 17    sary  to  implement  the  duties and responsibilities assigned to the medicaid
 18    fraud control unit under this section.
 19        (10) As used in this section:
 20        (a)  "Board and care facility" means a provider of medicaid services in  a
 21        residential setting which receives payment from or on behalf of two (2) or
 22        more unrelated adults who reside in such facility, and for whom one (1) or
 23        more of the following is provided:
 24             (i)   Nursing care services provided by, or under the supervision of,
 25             a  registered  nurse,  licensed  practical  nurse or certified nurses
 26             aide; or
 27             (ii)  A substantial amount of personal care services that assist res-
 28             idents with  the  activities  of  daily  living,  including  personal
 29             hygiene,  dressing,  bathing, eating, toileting, ambulation, transfer
 30             of positions, self-medication, body care, travel to medical services,
 31             essential shopping, meal preparation, laundry and housework.
 32        (b)  "Department" means the Idaho department of health and welfare.
 33        (c)  "Director" means the director of the Idaho department of  health  and
 34        welfare.
 35        (d)  "Medicaid" means Idaho's medical assistance program.
 36        (e)  "Provider"  means  any individual, partnership, association, corpora-
 37        tion or organization, public or private,  which  provides  residential  or
 38        assisted living services, certified family home services, nursing facility
 39        services or services offered pursuant to medical assistance.
 40        (f)  "Recipient"  means  an individual determined eligible by the director
 41        for the services provided in the state plan for medicaid.
 42        (g)  "State plan" means the Idaho state plan pursuant to  subchapter  XIX,
 43        chapter 7, title 42 U.S.C.
                                                                        
 44        SECTION  5.  That  Section  56-227, Idaho Code, be, and the same is hereby
 45    amended to read as follows:
                                                                        
 46        56-227.  FRAUDULENT ACTS -- PENALTY. (a)  Whoever  knowingly  obtains,  or
 47    attempts  to  obtain,  or aids or abets any person in obtaining, by means of a
 48    willfully false statement or representation, material omission, or  fraudulent
 49    devices,  public  assistance,  relief or federal-aid assistance to which he is
 50    not entitled, or in an amount greater than that to which he  is  justly  enti-
 51    tled,  shall be punished in the same manner and to the same extent as for lar-
 52    ceny or theft of the money or value of the public assistance  so  obtained  or
 53    attempted to be so obtained.
                                                                        
                                       9
                                                                        
  1        (b)  Whoever  sells, conveys, mortgages or otherwise disposes of his prop-
  2    erty, real or personal, or conceals his income or resources, for  the  purpose
  3    of  rendering him eligible for any form of assistance, theretofore or thereaf-
  4    ter applied for, to which he would  not otherwise be entitled, shall  be  pun-
  5    ished in the same manner and to the same extent as for larceny or theft of the
  6    money or value of the assistance so obtained or so attempted to be obtained.
  7        (c)  Every  person who knowingly aids or abets any person in selling, con-
  8    veying, mortgaging or otherwise disposing of his property, real  or  personal,
  9    or  in  concealing  his  income or resources  for the purpose of rendering him
 10    eligible for any form of public assistance or relief, theretofore or  thereaf-
 11    ter  applied  for  and  received, to which he would not otherwise be entitled,
 12    shall be punished in the same manner and to the same extent as for larceny  or
 13    theft  of the money or value of the public assistance or relief so obtained or
 14    attempted to be obtained.
 15        (d)  For the purpose of this section federal-aid assistance shall  include
 16    the  specific categories of assistance for which provision is made in any fed-
 17    eral law existing or hereafter enacted by the congress of the United States by
 18    which payments are made from the federal government to the state in aid or  in
 19    respect  to payment by the state for welfare purposes to any category of needy
 20    person and any other program of assistance for  which  provision  for  federal
 21    funds for aid may from time to time be made.
 22        (e)  The  state department of health and welfare shall establish and oper-
 23    ate a fraud control program as permitted by section 416 of the social security
 24    act as now or hereafter amended.
                                                                        
 25        SECTION 6.  That Section 56-227B, Idaho Code, be, and the same  is  hereby
 26    amended to read as follows:
                                                                        
 27        56-227B.  PROVIDER  FRAUD  --  DAMAGES.  Any  provider  who knowingly with
 28    intent to defraud by means of false statement or representation, obtains  com-
 29    pensation  from public funds greater than that to which he is legally entitled
 30    for services or supplies furnished or purportedly furnished  shall  be  liable
 31    for  civil  damages equal to three (3) times the amount by which any figure is
 32    falsely overstated.  The director of the department of health and  welfare  or
 33    the  attorney  general  shall have the right to cause legal action to be taken
 34    for the recovery of such damages when persuaded that a reimbursement claim for
 35    payment is falsely overstated.  The burden of proof for such  recovery  action
 36    shall  be  that  which is used in other civil actions for the recovery of dam-
 37    ages. The remedy provided by this section  shall be in addition to  any  other
 38    remedy provided by law.
 39        If any provider of services or supplies is required to refund or repay all
 40    or  part of any payment received by said provider under the provisions of this
 41    section, said refund or repayment shall bear interest from  the  date  payment
 42    was  made  to  such provider to the date of said refund or repayment. Interest
 43    shall accrue at the rate of ten per cent percent (10%) per  annum.  If,  as  a
 44    result  of such The prevailing party in an action, the provider of services or
 45    supplies is not required to refund or repay any payment received by said  pro-
 46    vider  under  the terms of this section, shall be awarded costs and reasonable
 47    attorney's fees shall be allowed the provider incurred in bringing or  defend-
 48    ing  the  action.  Notwithstanding  any other provision of the Idaho Code, all
 49    costs and attorney's fees awarded to the department of health and  welfare  or
 50    the  attorney  general  pursuant  to  this section shall be deposited into the
 51    state general fund.
                                                                        
 52        SECTION 7.  That Section 56-227C, Idaho Code, be, and the same  is  hereby
                                                                        
                                       10
                                                                        
  1    amended to read as follows:
                                                                        
  2        56-227C.  SUBPOENA  POWER. (1) The director, or his authorized representa-
  3    tive, and the director of the Idaho state police, or his authorized  represen-
  4    tative,  and  any prosecuting attorney of any county, for the purposes contem-
  5    plated by this act, have power to issue subpoenas, compel  the  attendance  of
  6    witnesses, administer oaths, certify to official acts, take depositions within
  7    and  without the state of Idaho, as now provided by law, compel the production
  8    of pertinent books, payrolls, accounts, papers, records, documents and  testi-
  9    mony.  If a person in attendance before such director or his authorized repre-
 10    sentative or prosecuting attorney refuses, without  reasonable  cause,  to  be
 11    examined  or to answer a legal and pertinent question, or to produce a book or
 12    paper or other evidence when ordered so to do by the director  or  his  autho-
 13    rized representative, or prosecuting attorney, said director or his authorized
 14    representative  or prosecuting attorney may apply to the judge of the district
 15    court of the county where such person is in attendance, upon affidavit for  an
 16    order  returnable in not less than two (2) or more than five (5) days, direct-
 17    ing such person to show cause before such judge, or any other  judge  of  such
 18    district, why he should not be punished for contempt; upon the hearing of such
 19    order, if the judge shall determine that such person has refused, without rea-
 20    sonable  cause  or legal excuse, to be examined or to answer a legal or perti-
 21    nent question, or to produce a book or paper which he was ordered to bring  or
 22    produce, he may forthwith punish the offender as for contempt of court.
 23        (a)  No  If any person shall asks to be excused from attending or testify-
 24        ing or from producing any books, or payrolls, accounts,  papers,  records,
 25        or  documents  or  other  evidence in connection with any investigation or
 26        inquiry by or upon any hearing before any officer so authorized upon  pur-
 27        suant  to  this  subsection (1), or in any proceeding or action before any
 28        court upon a charge or violation of this subsection (1),   on  the  ground
 29        that the testimony or evidence, books, papers or documents required of him
 30        may  tend  to incriminate him or subject him to penalty or forfeiture; but
 31        no person shall be prosecuted, punished or subjected  to  any  penalty  or
 32        forfeiture for or on account of any act, transaction, matter or thing con-
 33        cerning which he is compelled, after claiming his privileges against self-
 34        incrimination,  to  testify or produce evidence, documentary or otherwise,
 35        except that any person so testifying shall not be exempt from  prosecution
 36        and punishment for perjury committed in so testifying, and if such person,
 37        notwithstanding  such  request, is directed to give such testimony or pro-
 38        duce such evidence, the person must, if so directed by the director or his
 39        authorized representative, comply with such direction.
 40        (b)  After complying, and if, but for  this  subsection  (1),  the  person
 41        would  have  been  privileged to withhold the answer given or the evidence
 42        produced by him,  then  the  answer,  the  evidence  and  any  information
 43        directly  or  indirectly  derived  from the answer or evidence, may not be
 44        used against the compelled person in any manner in a criminal case, except
 45        that the person may nevertheless be prosecuted or subjected to penalty  or
 46        forfeiture  for  any  perjury,  false  swearing  or  contempt committed in
 47        answering or failing to answer or in producing or failing to produce  evi-
 48        dence  in  accordance  with  the  order.  Such evidence may be used in the
 49        refusal, suspension or revocation of any license, permission or  authority
 50        conferred, or to be conferred, pursuant to Idaho Code.
 51        (2)  The  attorney  general  or any prosecuting attorney or the designated
 52    agent of either shall have the authority to issue subpoenas to an enrolled  or
 53    formerly  enrolled  provider  of  services pursuant to the medicaid program to
 54    compel production of books, payrolls, accounts, papers, records, documents and
                                                                        
                                       11
                                                                        
  1    other items that may be relevant to an investigation of fraud or  other  crime
  2    directly  related  to  the  use of medicaid program funds or services provided
  3    through the medicaid program that are not already in  the  possession  of  the
  4    director  of the department of health and welfare or his designated agent. The
  5    attorney general or any prosecuting attorney or the designated agent of either
  6    may also compel testimony by the custodian of the items subpoenaed  concerning
  7    the production and authenticity of those items.
  8        (a)  A  subpoena  under  this  subsection  (2)  shall  describe  the items
  9        required to be produced with particularity and prescribe a return date  of
 10        a  reasonable  period  of time within which the items can be assembled and
 11        made available to the attorney general or any prosecuting attorney or  the
 12        designated agent of either.
 13        (b)  At  any  time  before  the return date specified in the subpoena, the
 14        enrolled or formerly enrolled provider who offers services pursuant to the
 15        medicaid program may apply to a judge of the district court of the  county
 16        where  such  provider is in attendance, for an order modifying or quashing
 17        the subpoena. A subpoena that requests items that are reasonably  relevant
 18        to an investigation of fraud or other crime directly related to the use of
 19        medicaid  program funds or services provided through the medicaid program,
 20        shall not be modified or quashed. Probable cause for the  issuance  of  an
 21        investigatory subpoena under this subsection (2) shall not be required.
 22        (3)  Subpoenas issued pursuant to this section shall be served and witness
 23    fees and mileage paid as allowed in civil cases in the district courts of this
 24    state.
 25        (4)  Inspectors  and  iInvestigators  employed  by  the Idaho state police
 26    attorney general for the enforcement of this act investigation and prosecution
 27    of providers of services pursuant to the medicaid program shall have  all  the
 28    authority given by statute to peace officers of the state of Idaho, including,
 29    but  not limited to, authority to obtain, serve and execute warrants of arrest
 30    and warrants of search and seizure.
                                                                        
 31        SECTION 8.  That Section 56-227D, Idaho Code, be, and the same  is  hereby
 32    amended to read as follows:
                                                                        
 33        56-227D.  FEDERAL  FOOD STAMPS -- UNAUTHORIZED USE -- EXCEPTION -- DEFINI-
 34    TION. (a1) It is a misdemeanor for any person  to  buy,  receive,  sell,  give
 35    away, dispose of, exchange or barter any federal food stamps of a value of one
 36    hundred  fifty dollars ($150) or less, except for the eligible foods for which
 37    they are issued.
 38        (b2)  It is a felony for any person to buy, receive, sell, give away, dis-
 39    pose of, exchange or barter any federal food stamps of a value  exceeding  one
 40    hundred fifty dollars ($150), except for the eligible foods for which they are
 41    issued.
 42        (c3)  This  section  does not apply to any person buying, receiving, sell-
 43    ing, giving away, disposing of,  exchanging  or  bartering  any  federal  food
 44    stamps  subsequent  to the redemption of such stamps in the manner provided by
 45    state or federal law.
 46        (d4)  As used in this section, federal food stamps refers to stamps issued
 47    for food by the United States department of agriculture or its duly authorized
 48    agent.
 49        (5)  This section shall be enforced by the director of the  department  of
 50    health  and  welfare in cooperation with local law enforcement and prosecuting
 51    agencies. Such enforcement shall not be the  responsibility  of  the  medicaid
 52    fraud control unit as provided in section 56-226, Idaho Code.
                                                                        
                                       12
                                                                        
  1        SECTION  9.  That  Chapter  2,  Title  56, Idaho Code, be, and the same is
  2    hereby amended by the addition thereto of a NEW SECTION, to be known and  des-
  3    ignated as Section 56-227E, Idaho Code, and to read as follows:
                                                                        
  4        56-227E.  OBSTRUCTION  OF  INVESTIGATION. (1) An obstruction of investiga-
  5    tion consists of knowingly:
  6        (a)  Providing false information to, or knowingly withholding  information
  7        from,  any person authorized to investigate a violation of this chapter or
  8        to enforce the criminal or civil  remedies  of  this  chapter  where  that
  9        information is material to the investigation or enforcement; or
 10        (b)  Altering  any  document or record required to be retained pursuant to
 11        this chapter or any rule issued by the department of health  and  welfare,
 12        when  the  alteration is intended to mislead an investigation and concerns
 13        information material to that investigation.
 14        (2)  Whoever commits an obstruction of investigation shall be guilty of  a
 15    felony  and  shall  be sentenced pursuant to the provisions of section 18-112,
 16    Idaho Code.
                                                                        
 17        SECTION 10.  That Section 67-1401, Idaho Code, be, and the same is  hereby
 18    amended to read as follows:
                                                                        
 19        67-1401.  DUTIES OF ATTORNEY GENERAL. Except as otherwise provided in this
 20    chapter, it is the duty of the attorney general:
 21        (1.)  To  perform  all  legal  services for the state and to represent the
 22    state and all departments, agencies, offices, officers,  boards,  commissions,
 23    institutions  and  other state entities, in all courts and before all adminis-
 24    trative tribunals or bodies of any nature. Representation shall be provided to
 25    those entities exempted pursuant to the provisions of section  67-1406,  Idaho
 26    Code.  Whenever  required  to attend upon any court or administrative tribunal
 27    the attorney general shall be  allowed  necessary  and  actual  expenses,  all
 28    claims for which shall be audited by the state board of examiners.
 29        (2.)  To advise all departments, agencies, offices, officers, boards, com-
 30    missions, institutions and other state entities in all matters involving ques-
 31    tions of law.
 32        (3.)  After  judgment in any of the causes referred to in the first subdi-
 33    vision, to direct the issuing of such process as may be necessary to carry the
 34    same into execution.
 35        (4.)  To account for and  pay  over  to  the  proper  officer  all  moneys
 36    received which belong to the state.
 37        (5.)  To  supervise  nonprofit  corporations,  corporations, charitable or
 38    benevolent societies, person or persons holding property subject to any public
 39    or charitable trust and to enforce whenever  necessary  any  noncompliance  or
 40    departure  from  the general purpose of such trust and, in order to accomplish
 41    such purpose, said nonprofit corporations, corporations, charitable or benevo-
 42    lent societies, person or persons holding property subject to  any  public  or
 43    charitable  trust are subject at all times to examination by the attorney gen-
 44    eral, on behalf of the state, to ascertain the condition of its affairs and to
 45    what extent, if at all, said trustee or trustees may  have  failed  to  comply
 46    with  trusts  said  trustee or trustees have assumed or may have departed from
 47    the general purpose for which it was formed. In case of any  such  failure  or
 48    departure, the attorney general shall institute, in the name of the state, any
 49    proceeding  necessary to enforce compliance with the terms of the trust or any
 50    departure therefrom.
 51        (6.)  To give an opinion in writing, without fee, to  the  legislature  or
 52    either  house  thereof, or any senator or representative, and to the governor,
                                                                        
                                       13
                                                                        
  1    secretary of state, treasurer, state controller,  and  the  superintendent  of
  2    public instruction, when requested, upon any question of law relating to their
  3    respective  offices.  The  attorney general shall keep a record of all written
  4    opinions rendered by the office and such opinions shall be  compiled  annually
  5    and  made  available for public inspection. All costs incurred in the prepara-
  6    tion of said opinions shall be borne by the office of the attorney general.  A
  7    copy  of the opinions shall be furnished to the supreme court and to the state
  8    librarian.
  9        (7.)  When required by the public service, to repair to any county in  the
 10    state and assist the prosecuting attorney thereof in the discharge of duties.
 11        (8.)  To  bid upon and purchase, when necessary, in the name of the state,
 12    and under the direction of the state controller, any property offered for sale
 13    under execution issued upon judgments in favor of or for the use of the state,
 14    and to enter satisfaction in whole or in part of such judgments as the consid-
 15    eration for such purchases.
 16        (9.)  Whenever the property of a judgment debtor in any judgment mentioned
 17    in the preceding subdivision has been sold under a prior judgment, or is  sub-
 18    ject  to any judgment, lien, or encumbrance, taking precedence of the judgment
 19    in favor of the state, under the direction of the state controller, to  redeem
 20    such  property from such prior judgment, lien, or encumbrance; and all sums of
 21    money necessary for such redemption must, upon the order of the board of exam-
 22    iners, be paid out of any money appropriated for such purposes.
 23        (10.) When necessary for the collection or  enforcement  of  any  judgment
 24    hereinbefore  mentioned,  to  institute and prosecute, in behalf of the state,
 25    such suits or other proceedings as may be necessary to set aside and annul all
 26    conveyances fraudulently made by such judgment debtors; the cost necessary  to
 27    the  prosecution  must, when allowed by the board of examiners, be paid out of
 28    any appropriations for the prosecution of delinquents.
 29        (11.) To exercise all the common law power and  authority  usually  apper-
 30    taining to the office and to discharge the other duties prescribed by law.
 31        (12.) To  report  to  the governor, at the time required by this code, the
 32    condition of the affairs of the attorney general's office and of  the  reports
 33    received from prosecuting attorneys.
 34        (13.) To  appoint  deputy  attorneys  general and special deputy attorneys
 35    general and other necessary staff to assist in the performance of  the  duties
 36    of the office. Such deputies and staff shall be nonclassified employees within
 37    the meaning of section 67-5302, Idaho Code.
 38        (14)  To  establish  a  medicaid fraud control unit pursuant to the provi-
 39    sions of section 56-226, Idaho Code, and to exercise concurrent  investigative
 40    and  prosecutorial  authority  and  responsibility  with county prosecutors to
 41    prosecute persons for the violation of the criminal provisions of  chapter  2,
 42    title  56,  Idaho Code, and for criminal offenses that are not defined in said
 43    chapter 2, title 56, Idaho Code, but that involve or are directly  related  to
 44    the  use  of  medicaid program funds or services provided through the medicaid
 45    program.

Amendment


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                                                                        
                                                                        
                                                     Moved by    Lodge               
                                                                        
                                                     Seconded by Burkett             
                                                                        
                                                                        
                                       IN THE SENATE
                       SENATE AMENDMENTS TO H.B. NO. 166, As Amended
                                                                        
                                                                        
  1                                AMENDMENT TO SECTION 2
  2        On page 4 of the engrossed bill, delete lines 36 through 38,  and  insert:
  3    "pected  case  of fraud or abuse and the department has reason to believe that
  4    payments made during the investigation may  be  difficult  or  impractical  to
  5    recover,  the  department  may  suspend  or  withhold payments to the provider
  6    pend-".
                                                                        
  7                                AMENDMENT TO SECTION 3
  8        On page 6, delete lines 9 through 15, and  insert:  "shall  retain  for  a
  9    period  of  at  least  five (5) years all records required to be maintained by
 10    rule of the department for".
                                                                        
 11                               AMENDMENTS TO SECTION 7
 12        On page 11, delete lines 3 and 4, and insert: "compel  production  of  any
 13    books,  payrolls,  accounts, papers, records or documents that are required to
 14    be maintained under the medicaid provider agreement executed by such  provider
 15    or  formerly enrolled provider as may be relevant to an investigation of fraud
 16    or other crime"; and delete lines 10 through 24, and insert:  "the  production
 17    and  authenticity  of  those items. Subpoenas for records or information which
 18    are not required to be maintained under a provider  agreement  shall  only  be
 19    issued  through subpoena powers in judicial proceedings. A subpoena under this
 20    subsection (2) shall describe the items required to be produced with  particu-
 21    larity and prescribe a return date of a reasonable period of time within which
 22    the  items  can be assembled and made available to the attorney general or any
 23    prosecuting attorney or the designated agent of either.".
                                                                        
 24                               AMENDMENTS TO SECTION 9
 25        On page 12, in line 9, following "person" insert: "requesting such  infor-
 26    mation  if  that  person is"; and in line 11, following "is" insert: "properly
 27    requested and is".
                                                                        
 28                                 CORRECTION TO TITLE
 29        On page 1, in line 6, delete "REMOVE A CONDITION FOR ACTION, TO".
                                                                        
                                       2
                                                                        
                                                     Moved by    Henbest             
                                                                        
                                                     Seconded by Bilbao              
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                              HOUSE AMENDMENT TO H.B. NO. 166
                                                                        
  1                               AMENDMENTS TO SECTION 3
  2        On page 6 of the printed bill, in line 17, delete "to  intentionally"  and
  3    insert:  "with an intent to evade or avoid the provisions of this act: to"; in
  4    line 19, following "later" delete "," and insert: ";"; in line  22,  following
  5    "who"  insert:  ",  with  an  intent  to evade or avoid the provisions of this
  6    act,"; and in line 24, following "(2)" insert: ", with an intent to  evade  or
  7    avoid the provisions of this act,".

Engrossed Bill (Original Bill with Amendment(s) Incorporated)


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                  HOUSE BILL NO. 166, As Amended, As Amended in the Senate
                                                                        
                              BY HEALTH AND WELFARE COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO MEDICAID; AMENDING SECTION 15-8-103, IDAHO CODE, TO MAKE A TECHNI-
  3        CAL CORRECTION; AMENDING SECTION 56-209h, IDAHO CODE, TO DEFINE A TERM, TO
  4        PROVIDE FOR A MEDICAID FRAUD PROGRAM IN THE DEPARTMENT OF HEALTH AND  WEL-
  5        FARE  AND THE SCOPE OF SUCH PROGRAM, TO REMOVE A TIME REQUIREMENT, TO PRO-
  6        VIDE FOR ACTION UPON REFERRAL, TO PROVIDE REFERRAL AND COMPLIANCE REQUIRE-
  7        MENTS, TO PROVIDE FOR A MINIMUM FOR COST RECOVERY AND TO MAKE A  TECHNICAL
  8        CORRECTION;  AMENDING  CHAPTER 2, TITLE 56, IDAHO CODE, BY THE ADDITION OF
  9        NEW SECTIONS 56-209o AND 56-226, IDAHO CODE, TO PROVIDE FOR RECORD  RETEN-
 10        TION  REQUIREMENTS, TO PROVIDE FOR CRIMINAL PENALTIES, TO ESTABLISH IN THE
 11        OFFICE OF THE ATTORNEY GENERAL THE MEDICAID FRAUD CONTROL UNIT, TO PROVIDE
 12        THE DUTIES, AUTHORITY AND RESPONSIBILITIES OF THE UNIT, TO PROVIDE  EXCLU-
 13        SIVE  CONTROL  OF  THE  UNIT AND TO DEFINE TERMS; AMENDING SECTION 56-227,
 14        IDAHO CODE, TO REMOVE A REQUIREMENT FOR THE DEPARTMENT OF HEALTH AND  WEL-
 15        FARE  TO  ESTABLISH  AND OPERATE A FRAUD CONTROL PROGRAM; AMENDING SECTION
 16        56-227B, IDAHO CODE, TO PROVIDE FOR THE RIGHT OF THE ATTORNEY  GENERAL  TO
 17        CAUSE CERTAIN LEGAL ACTION TO BE UNDERTAKEN, TO PROVIDE FOR COSTS AND REA-
 18        SONABLE  ATTORNEY'S FEES TO BE AWARDED TO THE PREVAILING PARTY, TO PROVIDE
 19        FOR THE DISPOSITION OF COSTS AND ATTORNEY'S FEES AND TO MAKE  A  TECHNICAL
 20        CORRECTION;  AMENDING SECTION 56-227C, IDAHO CODE, TO REQUIRE PERSONS ASK-
 21        ING TO BE EXCUSED FROM ATTENDING, PRODUCING OR TESTIFYING ON  THE  GROUNDS
 22        OF  SELF-INCRIMINATION  TO COMPLY WITH THE REQUEST, TO PROVIDE FOR THE USE
 23        OF INFORMATION PROVIDED BY PERSONS PRIVILEGED TO WITHHOLD INFORMATION,  TO
 24        PROVIDE  AUTHORITY TO THE ATTORNEY GENERAL AND ANY PROSECUTING ATTORNEY TO
 25        ISSUE SUBPOENAS AND COMPEL TESTIMONY FROM CUSTODIANS, TO PROVIDE  SUBPOENA
 26        REQUIREMENTS, TO PROVIDE PROCEDURE AND GROUNDS FOR MODIFYING OR QUASHING A
 27        SUBPOENA  AND TO PROVIDE PEACE OFFICER STATUS TO INVESTIGATORS EMPLOYED BY
 28        THE ATTORNEY GENERAL; AMENDING SECTION 56-227D,  IDAHO  CODE,  TO  PROVIDE
 29        ENFORCEMENT AUTHORITY TO THE DIRECTOR OF THE DEPARTMENT OF HEALTH AND WEL-
 30        FARE,  TO  PROVIDE  THAT SUCH ENFORCEMENT IS NOT THE RESPONSIBILITY OF THE
 31        MEDICAID FRAUD UNIT AND TO MAKE TECHNICAL CORRECTIONS; AMENDING CHAPTER 2,
 32        TITLE 56, IDAHO CODE, BY THE ADDITION OF  A  NEW  SECTION  56-227E,  IDAHO
 33        CODE, TO PROVIDE A DESCRIPTION OF OBSTRUCTION OF INVESTIGATION AND TO PRO-
 34        VIDE  CRIMINAL  PENALTIES;  AND  AMENDING  SECTION 67-1401, IDAHO CODE, TO
 35        REVISE DUTIES OF THE ATTORNEY GENERAL AND TO MAKE TECHNICAL CORRECTIONS.
                                                                        
 36    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 37        SECTION 1.  That Section 15-8-103, Idaho Code, be, and the same is  hereby
 38    amended to read as follows:
                                                                        
 39        15-8-103.  DEFINITIONS.  The  definitions in this section apply throughout
 40    this chapter unless the context clearly requires otherwise:
 41        (1)  "Matter" includes any issue, question or dispute involving:
 42        (a)  The determination of any  class  of  creditors,  devisees,  legatees,
 43        heirs,  next  of  kin,  or  other  persons interested in an estate, trust,
                                                                        
                                       2
                                                                        
  1        nonprobate asset, or with respect to any other asset or property  interest
  2        passing at death;
  3        (b)  The  direction  of  a  personal representative or trustee to do or to
  4        abstain from doing any act in a fiduciary capacity;
  5        (c)  The determination of any question arising in the administration of an
  6        estate or trust, or with respect to any nonprobate asset, or with  respect
  7        to  any  other  asset  or  property  interest  passing  at death, that may
  8        include, without limitation, questions relating to:
  9             (i)   The construction of wills, trusts, devolution  agreements,  and
 10             other writings;
 11             (ii)  A change of personal representative or trustee;
 12             (iii) A change of the situs of a trust;
 13             (iv)  An accounting from a personal representative or trustee; or
 14             (v)   The  determination  of  fees  for  a personal representative or
 15             trustee;
 16        (d)  The grant to a personal representative or trustee of any necessary or
 17        desirable power not otherwise granted in the governing instrument or given
 18        by law;
 19        (e)  The amendment, reformation, or conformation of  a  will  or  a  trust
 20        instrument  to  comply  with statutes and regulations of the United States
 21        internal revenue service in order to more efficiently allocate  exemptions
 22        or  to  achieve  qualification  for  deductions,  elections, and other tax
 23        requirements including, but not limited to, the qualification of any  gift
 24        thereunder  for  the benefit of a surviving spouse who is not a citizen of
 25        the United States for the estate tax marital deduction permitted  by  fed-
 26        eral  law,  including  the  addition  of  mandatory  governing  instrument
 27        requirements  for  a  qualified  domestic trust under section 2056A of the
 28        Internal Revenue Code, the qualification of any gift thereunder as a qual-
 29        ified conservation easement as permitted by federal law, or the qualifica-
 30        tion of any gift for the charitable estate tax deduction permitted by fed-
 31        eral  law,  including  the  addition  of  mandatory  governing  instrument
 32        requirements for a charitable remainder trust; and
 33        (f)  With respect to any nonprobate asset, or with respect  to  any  other
 34        asset  or  property interest passing at death, including actual joint ten-
 35        ancy property, property subject to a devolution agreement, or assets  sub-
 36        ject to a pay on death or transfer on death designation:
 37             (i)   The  ascertaining  of any class of creditors or others for pur-
 38             poses of section 15-6-107, Idaho Code;
 39             (ii)  The ordering of a custodian of any of  the  decedent's  records
 40             relating  to  a nonprobate asset to do or abstain from doing any par-
 41             ticular act with respect to those records;
 42             (iii) The determination of any question arising in the administration
 43             of a nonprobate asset under section 15-6-107, Idaho Code;
 44             (iv)  The determination of any questions relating to  the  abatement,
 45             rights  of creditors, or other matter relating to the administration,
 46             settlement, or final disposition of a nonprobate  asset  under  title
 47             15, Idaho Code; and
 48             (v)   The  resolution of any matter referencing this chapter, includ-
 49             ing a determination of any questions relating  to  the  ownership  or
 50             distribution  of an individual retirement account on the death of the
 51             spouse of the account holder as contemplated by  section  11-604A(6),
 52             Idaho Code;
 53        (g)  The  resolution  of any other matter that could affect the nonprobate
 54        asset.
 55        (2)  "Nonprobate assets" means assets that are covered by chapter 6, title
                                                                        
                                       3
                                                                        
  1    15, Idaho Code.
  2        (3)  "Party" or "parties" means each of the following persons who  has  an
  3    interest  in  the  subject  of  the  particular  proceeding and whose name and
  4    address are known to, or are reasonably ascertainable by, the petitioner:
  5        (a)  The trustor if living;
  6        (b)  The trustee;
  7        (c)  The personal representative;
  8        (d)  An heir;
  9        (e)  A beneficiary, including devisees, legatees, and trust beneficiaries;
 10        (f)  The surviving spouse of a decedent with respect to his or her  inter-
 11        est in the decedent's property;
 12        (g)  A guardian ad litem;
 13        (h)  A creditor;
 14        (i)  Any other person who has an interest in the subject of the particular
 15        proceeding;
 16        (j)  The  attorney  general  if  required under section 67-1401(5.), Idaho
 17        Code;
 18        (k)  Any duly appointed and acting legal representative of a party such as
 19        a guardian, conservator, special representative, or attorney in fact;
 20        (l)  Where applicable, the virtual representative of any person  described
 21        in  this  subsection  (3),  the giving of notice to whom would meet notice
 22        requirements as provided in section 15-8-204, Idaho Code; and
 23        (m)  The owner or  the  personal  representative  of  the  estate  of  the
 24        deceased owner of the nonprobate asset that is the subject of the particu-
 25        lar proceeding, if the subject of the particular proceeding relates to the
 26        beneficiary's  liability to a decedent's estate or creditors under section
 27        15-6-107, Idaho Code.
 28        (4)  "Persons interested in the estate or trust"  means  the  trustor,  if
 29    living,  all  persons  beneficially interested in the estate or trust, persons
 30    holding powers over the trust or estate assets, the attorney  general  in  the
 31    case  of  any charitable trust where the attorney general would be a necessary
 32    party to judicial proceedings concerning the trust, and any personal represen-
 33    tative or trustee of the estate or trust.
 34        (5)  "Representative" and other similar terms refer to a person who virtu-
 35    ally represents another person under section 15-8-205, Idaho Code.
 36        (6)  "Trustee" means any acting and qualified trustee of the trust.
                                                                        
 37        SECTION 2.  That Section 56-209h, Idaho Code, be, and the same  is  hereby
 38    amended to read as follows:
                                                                        
 39        56-209h.  ADMINISTRATIVE  REMEDIES.  (1) Definitions. For purposes of this
 40    section:
 41        (a)  "Abuse" or "abusive" means provider practices that  are  inconsistent
 42        with sound fiscal, business, or medical practices, and result in an unnec-
 43        essary  cost  to the medical assistance program, in reimbursement for ser-
 44        vices that are not medically necessary or that fail to meet professionally
 45        recognized standards for health care, or in physical harm, pain or  mental
 46        anguish to a medical assistance recipient.
 47        (b)  "Claim"  means any request or demand for payment of items or services
 48        under the state's medical assistance program, whether under a contract  or
 49        otherwise.
 50        (c)  "Fraud"  or "Ffraudulent" means an intentional deception or misrepre-
 51        sentation made by a person with the knowledge  that  the  deception  could
 52        result in some unauthorized benefit to himself or some other person.
 53        (d)  "Knowingly,"  "known"  or  "with knowledge" means that a person, with
                                                                        
                                       4
                                                                        
  1        respect to information or an action:
  2             (i)   Has actual knowledge of the information or action; or
  3             (ii)  Acts in deliberate ignorance of the truth  or  falsity  of  the
  4             information or the correctness or incorrectness of the action; or
  5             (iii) Acts  in  reckless  disregard  of  the  truth or falsity of the
  6             information or the correctness or incorrectness of the action.
  7        (e)  "Managing employee" means a general manager, business manager, admin-
  8        istrator, director or other individual who exercises operational or  mana-
  9        gerial control over, or who directly or indirectly conducts the day-to-day
 10        operation of, an institution, organization or agency.
 11        (f)  "Medicaid  fraud control unit" means that medicaid fraud control unit
 12        as provided for in section 56-226, Idaho Code.
 13        (g)  "Ownership or control interest" means a person or entity that:
 14             (i)   Has an ownership interest totaling twenty-five percent (25%) or
 15             more in an entity; or
 16             (ii)  Is an officer or director of an entity that is organized  as  a
 17             corporation; or
 18             (iii) Is  a  partner in an entity that is organized as a partnership;
 19             or
 20             (iv)  Is a managing member in an entity that is organized as  a  lim-
 21             ited liability company.
 22        (2)  The  department  shall  establish and operate an administrative fraud
 23    control program to enforce violations of the provisions of this chapter and of
 24    the state plan pursuant to subchapters XIX  and  XXI,  chapter  7,  title  42,
 25    U.S.C., that are outside the scope of the duties of the medicaid fraud control
 26    unit and to render and receive referrals from and to said unit.
 27        (3)  Review  of  dDocumentation  of  services.  All  claims  submitted  by
 28    providers for payment are subject to prepayment and postpayment review as des-
 29    ignated  by rule. Except as otherwise provided by rule, providers shall gener-
 30    ate documentation at the time of service sufficient to support each claim. and
 31    shall retain the documentation for a minimum of five (5) years from  the  date
 32    the  item or service was provided. The department or authorized agent shall be
 33    given immediate access to such documentation upon written request.
 34        (34)  Immediate action. In the event that the department identifies a sus-
 35    pected case of fraud or abuse and the department has reason  to  believe  that
 36    payments  made  during  the  investigation  may be difficult or impractical to
 37    recover, the department may suspend or withhold payments to the provider pend-
 38    ing investigation. In the event that the  department  identifies  a  suspected
 39    case  of  fraud  or abuse and it determines that it is necessary to prevent or
 40    avoid immediate danger to the public health or safety, the department may sum-
 41    marily suspend a provider agreement pending investigation. When payments  have
 42    been  suspended or withheld or a provider agreement suspended pending investi-
 43    gation, the department shall provide for a hearing within thirty (30) days  of
 44    receipt of any duly filed notice of appeal.
 45        (45)  Recovery  of  payments.  Upon referral of a matter from the medicaid
 46    fraud control unit,  or iIf it is determined by the department that any condi-
 47    tion of payment contained in rule, regulation, statute, or provider  agreement
 48    was not met, the department may initiate administrative proceedings to recover
 49    any payments made for items or services. Interest shall accrue on overpayments
 50    at  the  statutory  rate  set forth in section 28-22-104, Idaho Code, from the
 51    date of final determination of the amount owed for items or services until the
 52    date of recovery.
 53        (56)  Provider status. The department may terminate the provider agreement
 54    or otherwise deny provider status to any individual or entity who:
 55        (a)  Submits a claim with knowledge that the claim is incorrect, including
                                                                        
                                       5
                                                                        
  1        reporting costs as allowable which were known to be disallowed in a previ-
  2        ous audit, unless the provider clearly indicates that the  item  is  being
  3        claimed  to  establish  the basis for an appeal and each disputed item and
  4        amount is specifically identified; or
  5        (b)  Submits a fraudulent claim; or
  6        (c)  Knowingly makes a false statement or representation of material  fact
  7        in  any document required to be maintained or submitted to the department;
  8        or
  9        (d)  Submits a claim for an item or service known to be medically unneces-
 10        sary; or
 11        (e)  Fails to provide, upon written request by the  department,  immediate
 12        access to documentation required to be maintained; or
 13        (f)  Fails  repeatedly or substantially to comply with the rules and regu-
 14        lations governing medical assistance payments; or
 15        (g)  Knowingly violates any material term or  condition  of  its  provider
 16        agreement; or
 17        (h)  Has  failed  to  repay,  or  was  a  "managing  employee"  or  had an
 18        "ownership or control interest" in any entity that has  failed  to  repay,
 19        any overpayments or claims previously found to have been obtained contrary
 20        to statute, rule, regulation or provider agreement; or
 21        (i)  Has  been found, or was a "managing employee" in any entity which has
 22        been found, to have engaged in fraudulent conduct or  abusive  conduct  in
 23        connection with the delivery of health care items or services; or
 24        (j)  Fails  to meet the qualifications specifically required by rule or by
 25        any applicable licensing board.
 26    Any individual or entity denied provider status under this section may be pre-
 27    cluded from participating as a provider in the medical assistance program  for
 28    up to five (5) years from the date the department's action becomes final.
 29        (7)  The  department must refer all cases of suspected fraud to the medic-
 30    aid fraud control unit and shall promptly comply with  any  request  from  the
 31    medicaid  fraud  control  unit for access to and free copies of any records or
 32    information kept by the  department  or  its  contractors,  computerized  data
 33    stored  by  the  department  or  its  contractors, and any information kept by
 34    providers to which the department is authorized access by law.
 35        (68)  Civil monetary penalties. The department may also assess civil mone-
 36    tary penalties against a provider and any  officer,  director,  owner,  and/or
 37    managing  employee of a provider for conduct identified in subsections (56)(a)
 38    through (56)(i) of this section. The amount of the penalties shall  be  up  to
 39    one  thousand  dollars  ($1,000)  for each item or service improperly claimed,
 40    except that in the case of multiple penalties the department  may  reduce  the
 41    penalties  to  not  less  than twenty-five percent (25%) of the amount of each
 42    item or service improperly claimed if an amount  can  be  readily  determined.
 43    Each  line  item of a claim, or cost on a cost report is considered a separate
 44    claim. These penalties are intended to be remedial, recovering  at  a  minimum
 45    costs  of investigation and administrative review, and placing the costs asso-
 46    ciated with noncompliance on the offending provider.
 47        (79)  Exclusion. Any individual or entity convicted of a criminal  offense
 48    related  to the delivery of an item or service under any state or federal pro-
 49    gram shall be excluded from program participation for a  period  of  not  less
 50    than  ten (10) years. Unless otherwise provided in this section or required by
 51    federal law, the department may exclude any individual or entity for a  period
 52    of  not  less than one (1) year for any conduct for which the secretary of the
 53    department of health and human services or designee could exclude an  individ-
 54    ual or entity.
 55        (810) Adoption of rules. The department shall promulgate such rules as are
                                                                        
                                       6
                                                                        
  1    necessary to carry out the policies and purposes of this section.
                                                                        
  2        SECTION  3.  That  Chapter  2,  Title  56, Idaho Code, be, and the same is
  3    hereby amended by the addition thereto of a NEW SECTION, to be known and  des-
  4    ignated as Section 56-209o, Idaho Code, and to read as follows:
                                                                        
  5        56-209o.  FAILURE  TO  RETAIN  RECORDS.  (1)  Whoever receives payment for
  6    treatment, services or goods under the provisions of this chapter or under the
  7    state plan pursuant to subchapter XIX or XXI, chapter  7,  title  42,  U.S.C.,
  8    shall  retain  for a period of at least five (5) years all records required to
  9    be maintained by rule of the department for  administration  of  the  medicaid
 10    program.
 11        (2)  It  shall be unlawful with an intent to evade or avoid the provisions
 12    of this act: to fail to retain the records specified in subsection (1) of this
 13    section for a period of at least five (5) years  from  the  date  payment  was
 14    claimed  or received, whichever is later; or to knowingly destroy or cause the
 15    records specified in subsection (1) of this section  to  be  destroyed  within
 16    five  (5)  years  from  the date payment was claimed or received, whichever is
 17    later. Any person who, with an intent to evade or avoid the provisions of this
 18    act, fails to retain records or destroys  records  or  causes  records  to  be
 19    destroyed as provided in this subsection (2), with an intent to evade or avoid
 20    the  provisions  of this act, shall be subject to the following criminal sanc-
 21    tions:
 22        (a)  If the treatment, services  or  goods  for  which  records  were  not
 23        retained  or  for which records were destroyed amount to not more than one
 24        thousand dollars ($1,000), the person shall be guilty of a misdemeanor and
 25        shall be sentenced pursuant to section 18-113, Idaho Code.
 26        (b)  If the value of the treatment, services or goods  for  which  records
 27        were  not  retained  or  for which records were destroyed is more than one
 28        thousand dollars ($1,000), the person shall be  guilty  of  a  felony  and
 29        shall be sentenced pursuant to section 18-112, Idaho Code.
 30        (c)  If  the  records  not  retained or destroyed were used in whole or in
 31        part to determine a rate of payment under the program, the person shall be
 32        guilty of a misdemeanor and shall be sentenced pursuant to section 18-113,
 33        Idaho Code.
                                                                        
 34        SECTION 4.  That Chapter 2, Title 56, Idaho Code,  be,  and  the  same  is
 35    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
 36    ignated as Section 56-226, Idaho Code, and to read as follows:
                                                                        
 37        56-226.  MEDICAID FRAUD CONTROL UNIT. (1) There is hereby  established  in
 38    the office of the attorney general the medicaid fraud control unit which shall
 39    have the authority and responsibilities as set forth in this section.
 40        (2)  Notwithstanding  the  authority  and  responsibility  granted  to the
 41    director of the department to provide for fraud control in  other  aspects  of
 42    public  assistance and public health programs, the medicaid fraud control unit
 43    shall have the authority and responsibility to conduct a statewide program for
 44    the investigation and prosecution of violations of all applicable  Idaho  laws
 45    pertaining  to fraud in the administration of the medicaid program, the provi-
 46    sion of medical assistance and in  the  activities  of  providers  of  medical
 47    assistance  and  services  under the state plan. Further, upon approval of the
 48    inspector general of the relevant federal agency, the office of  the  attorney
 49    general  shall  have  the  authority  and responsibility to investigate and to
 50    prosecute violations of any aspect of the provision of  health  care  services
 51    and  activities  of  providers  of such services under any federal health care
                                                                        
                                       7
                                                                        
  1    program as defined in 42 U.S.C. section 1320(a)-7b(f)1, if the suspected fraud
  2    or violation of law in such  investigation  or  prosecution  is  substantially
  3    related  to the state plan. The medicaid fraud control unit shall be under the
  4    exclusive control of the attorney general and be separate  and  distinct  from
  5    the department. No official from the department shall have authority to review
  6    or  override  the  prosecutorial  decisions made by the medicaid fraud control
  7    unit.
  8        (3)  The medicaid fraud control unit shall also:
  9        (a)  Review complaints of abuse  or  neglect  of  medicaid  recipients  in
 10        health  care  facilities  which receive payment pursuant to the state plan
 11        and may review complaints of the  misappropriation  of  patients'  private
 12        funds in such facilities; and
 13        (b)  Review complaints of abuse or neglect of medicaid recipients residing
 14        in a board and care facility.
 15        (4)  The  medicaid fraud control unit shall attempt to collect or refer to
 16    the department for collection overpayments  that  are  made  to  providers  of
 17    facilities  under  the  state plan or under any federal health care program to
 18    health care facilities that are the result of fraudulent  acts  and  that  are
 19    discovered by the medicaid fraud control unit in carrying out its responsibil-
 20    ities  under  this section. Notwithstanding any other provision of Idaho Code,
 21    all funds collected by the medicaid fraud control unit in accordance with this
 22    subsection (4) shall be deposited into the state general fund.
 23        (5)  The office of the attorney general shall employ such auditors, attor-
 24    neys, investigators and other personnel as are  necessary  to  carry  out  the
 25    responsibilities  of  the  medicaid fraud control unit as set forth under this
 26    section.
 27        (6)  The office of the attorney general shall submit to the  secretary  of
 28    the  federal  department of health and human services applications and reports
 29    containing such information as is determined by the secretary by regulation to
 30    be necessary to meet the requirements of subchapter XIX, chapter 7, title  42,
 31    U.S.C.
 32        (7)  In  carrying  out its duties and responsibilities under this section,
 33    the medicaid fraud control unit may:
 34        (a)  Request and receive the assistance of any prosecutor or law  enforce-
 35        ment  agency  in the investigation and prosecution of any violation of any
 36        applicable Idaho laws pertaining to fraud in  the  administration  of  the
 37        medicaid  program,  the provision of medical assistance and in the activi-
 38        ties of providers of medical assistance and services under the state plan;
 39        (b)  Enter upon the premises of any provider participating in the medicaid
 40        program to:
 41             (i)   Examine all accounts and records that are relevant in determin-
 42             ing the existence of fraud in the medicaid program;
 43             (ii)  Investigate alleged abuse or neglect of medicaid recipients; or
 44             (iii) Investigate  alleged  misappropriation  of  patients'   private
 45             funds.  The accounts or records of a nonmedicaid recipient may not be
 46             reviewed by, or turned over to the medicaid fraud control unit  with-
 47             out the patient's written consent or a court order; and
 48        (c)  Notwithstanding any other provision of law, upon written request have
 49        full  access  to  all records held by a medicaid provider, or by any other
 50        person on his or her behalf, that are relevant  to  the  determination  of
 51        the:
 52             (i)   Existence  of  civil violations or criminal offenses under this
 53             chapter or related offenses;
 54             (ii)  Existence of medicaid recipient abuse, mistreatment or neglect;
 55             or
                                                                        
                                       8
                                                                        
  1             (iii) Theft of medicaid recipient funds.
  2        No person holding such records shall refuse to provide the medicaid  fraud
  3        control    unit  access to such records for the purposes described in this
  4        section on the basis that release would violate the  medicaid  recipient's
  5        right  of  privacy  or  privilege against disclosure or use or any profes-
  6        sional or other privilege or right.
  7        (8)  The medicaid fraud control unit shall safeguard the privacy rights of
  8    medicaid recipients to avoid unnecessary disclosure  of  personal  information
  9    concerning  named  medicaid  recipients.  The  medicaid fraud control unit may
 10    transmit such information that it deems appropriate to the department  and  to
 11    other  agencies  concerned  with  the  regulation of health care facilities or
 12    health professionals.
 13        (9)  The attorney general shall have the authority to adopt  rules  neces-
 14    sary  to  implement  the  duties and responsibilities assigned to the medicaid
 15    fraud control unit under this section.
 16        (10) As used in this section:
 17        (a)  "Board and care facility" means a provider of medicaid services in  a
 18        residential setting which receives payment from or on behalf of two (2) or
 19        more unrelated adults who reside in such facility, and for whom one (1) or
 20        more of the following is provided:
 21             (i)   Nursing care services provided by, or under the supervision of,
 22             a  registered  nurse,  licensed  practical  nurse or certified nurses
 23             aide; or
 24             (ii)  A substantial amount of personal care services that assist res-
 25             idents with  the  activities  of  daily  living,  including  personal
 26             hygiene,  dressing,  bathing, eating, toileting, ambulation, transfer
 27             of positions, self-medication, body care, travel to medical services,
 28             essential shopping, meal preparation, laundry and housework.
 29        (b)  "Department" means the Idaho department of health and welfare.
 30        (c)  "Director" means the director of the Idaho department of  health  and
 31        welfare.
 32        (d)  "Medicaid" means Idaho's medical assistance program.
 33        (e)  "Provider"  means  any individual, partnership, association, corpora-
 34        tion or organization, public or private,  which  provides  residential  or
 35        assisted living services, certified family home services, nursing facility
 36        services or services offered pursuant to medical assistance.
 37        (f)  "Recipient"  means  an individual determined eligible by the director
 38        for the services provided in the state plan for medicaid.
 39        (g)  "State plan" means the Idaho state plan pursuant to  subchapter  XIX,
 40        chapter 7, title 42 U.S.C.
                                                                        
 41        SECTION  5.  That  Section  56-227, Idaho Code, be, and the same is hereby
 42    amended to read as follows:
                                                                        
 43        56-227.  FRAUDULENT ACTS -- PENALTY. (a)  Whoever  knowingly  obtains,  or
 44    attempts  to  obtain,  or aids or abets any person in obtaining, by means of a
 45    willfully false statement or representation, material omission, or  fraudulent
 46    devices,  public  assistance,  relief or federal-aid assistance to which he is
 47    not entitled, or in an amount greater than that to which he  is  justly  enti-
 48    tled,  shall be punished in the same manner and to the same extent as for lar-
 49    ceny or theft of the money or value of the public assistance  so  obtained  or
 50    attempted to be so obtained.
 51        (b)  Whoever  sells, conveys, mortgages or otherwise disposes of his prop-
 52    erty, real or personal, or conceals his income or resources, for  the  purpose
 53    of  rendering him eligible for any form of assistance, theretofore or thereaf-
                                                                        
                                       9
                                                                        
  1    ter applied for, to which he would  not otherwise be entitled, shall  be  pun-
  2    ished in the same manner and to the same extent as for larceny or theft of the
  3    money or value of the assistance so obtained or so attempted to be obtained.
  4        (c)  Every  person who knowingly aids or abets any person in selling, con-
  5    veying, mortgaging or otherwise disposing of his property, real  or  personal,
  6    or  in  concealing  his  income or resources  for the purpose of rendering him
  7    eligible for any form of public assistance or relief, theretofore or  thereaf-
  8    ter  applied  for  and  received, to which he would not otherwise be entitled,
  9    shall be punished in the same manner and to the same extent as for larceny  or
 10    theft  of the money or value of the public assistance or relief so obtained or
 11    attempted to be obtained.
 12        (d)  For the purpose of this section federal-aid assistance shall  include
 13    the  specific categories of assistance for which provision is made in any fed-
 14    eral law existing or hereafter enacted by the congress of the United States by
 15    which payments are made from the federal government to the state in aid or  in
 16    respect  to payment by the state for welfare purposes to any category of needy
 17    person and any other program of assistance for  which  provision  for  federal
 18    funds for aid may from time to time be made.
 19        (e)  The  state department of health and welfare shall establish and oper-
 20    ate a fraud control program as permitted by section 416 of the social security
 21    act as now or hereafter amended.
                                                                        
 22        SECTION 6.  That Section 56-227B, Idaho Code, be, and the same  is  hereby
 23    amended to read as follows:
                                                                        
 24        56-227B.  PROVIDER  FRAUD  --  DAMAGES.  Any  provider  who knowingly with
 25    intent to defraud by means of false statement or representation, obtains  com-
 26    pensation  from public funds greater than that to which he is legally entitled
 27    for services or supplies furnished or purportedly furnished  shall  be  liable
 28    for  civil  damages equal to three (3) times the amount by which any figure is
 29    falsely overstated.  The director of the department of health and  welfare  or
 30    the  attorney  general  shall have the right to cause legal action to be taken
 31    for the recovery of such damages when persuaded that a reimbursement claim for
 32    payment is falsely overstated.  The burden of proof for such  recovery  action
 33    shall  be  that  which is used in other civil actions for the recovery of dam-
 34    ages. The remedy provided by this section  shall be in addition to  any  other
 35    remedy provided by law.
 36        If any provider of services or supplies is required to refund or repay all
 37    or  part of any payment received by said provider under the provisions of this
 38    section, said refund or repayment shall bear interest from  the  date  payment
 39    was  made  to  such provider to the date of said refund or repayment. Interest
 40    shall accrue at the rate of ten per cent percent (10%) per  annum.  If,  as  a
 41    result  of such The prevailing party in an action, the provider of services or
 42    supplies is not required to refund or repay any payment received by said  pro-
 43    vider  under  the terms of this section, shall be awarded costs and reasonable
 44    attorney's fees shall be allowed the provider incurred in bringing or  defend-
 45    ing  the  action.  Notwithstanding  any other provision of the Idaho Code, all
 46    costs and attorney's fees awarded to the department of health and  welfare  or
 47    the  attorney  general  pursuant  to  this section shall be deposited into the
 48    state general fund.
                                                                        
 49        SECTION 7.  That Section 56-227C, Idaho Code, be, and the same  is  hereby
 50    amended to read as follows:
                                                                        
 51        56-227C.  SUBPOENA  POWER. (1) The director, or his authorized representa-
                                                                        
                                       10
                                                                        
  1    tive, and the director of the Idaho state police, or his authorized  represen-
  2    tative,  and  any prosecuting attorney of any county, for the purposes contem-
  3    plated by this act, have power to issue subpoenas, compel  the  attendance  of
  4    witnesses, administer oaths, certify to official acts, take depositions within
  5    and  without the state of Idaho, as now provided by law, compel the production
  6    of pertinent books, payrolls, accounts, papers, records, documents and  testi-
  7    mony.  If a person in attendance before such director or his authorized repre-
  8    sentative or prosecuting attorney refuses, without  reasonable  cause,  to  be
  9    examined  or to answer a legal and pertinent question, or to produce a book or
 10    paper or other evidence when ordered so to do by the director  or  his  autho-
 11    rized representative, or prosecuting attorney, said director or his authorized
 12    representative  or prosecuting attorney may apply to the judge of the district
 13    court of the county where such person is in attendance, upon affidavit for  an
 14    order  returnable in not less than two (2) or more than five (5) days, direct-
 15    ing such person to show cause before such judge, or any other  judge  of  such
 16    district, why he should not be punished for contempt; upon the hearing of such
 17    order, if the judge shall determine that such person has refused, without rea-
 18    sonable  cause  or legal excuse, to be examined or to answer a legal or perti-
 19    nent question, or to produce a book or paper which he was ordered to bring  or
 20    produce, he may forthwith punish the offender as for contempt of court.
 21        (a)  No  If any person shall asks to be excused from attending or testify-
 22        ing or from producing any books, or payrolls, accounts,  papers,  records,
 23        or  documents  or  other  evidence in connection with any investigation or
 24        inquiry by or upon any hearing before any officer so authorized upon  pur-
 25        suant  to  this  subsection (1), or in any proceeding or action before any
 26        court upon a charge or violation of this subsection (1),   on  the  ground
 27        that the testimony or evidence, books, papers or documents required of him
 28        may  tend  to incriminate him or subject him to penalty or forfeiture; but
 29        no person shall be prosecuted, punished or subjected  to  any  penalty  or
 30        forfeiture for or on account of any act, transaction, matter or thing con-
 31        cerning which he is compelled, after claiming his privileges against self-
 32        incrimination,  to  testify or produce evidence, documentary or otherwise,
 33        except that any person so testifying shall not be exempt from  prosecution
 34        and punishment for perjury committed in so testifying, and if such person,
 35        notwithstanding  such  request, is directed to give such testimony or pro-
 36        duce such evidence, the person must, if so directed by the director or his
 37        authorized representative, comply with such direction.
 38        (b)  After complying, and if, but for  this  subsection  (1),  the  person
 39        would  have  been  privileged to withhold the answer given or the evidence
 40        produced by him,  then  the  answer,  the  evidence  and  any  information
 41        directly  or  indirectly  derived  from the answer or evidence, may not be
 42        used against the compelled person in any manner in a criminal case, except
 43        that the person may nevertheless be prosecuted or subjected to penalty  or
 44        forfeiture  for  any  perjury,  false  swearing  or  contempt committed in
 45        answering or failing to answer or in producing or failing to produce  evi-
 46        dence  in  accordance  with  the  order.  Such evidence may be used in the
 47        refusal, suspension or revocation of any license, permission or  authority
 48        conferred, or to be conferred, pursuant to Idaho Code.
 49        (2)  The  attorney  general  or any prosecuting attorney or the designated
 50    agent of either shall have the authority to issue subpoenas to an enrolled  or
 51    formerly  enrolled  provider  of  services pursuant to the medicaid program to
 52    compel production of any books, payrolls, accounts, papers, records  or  docu-
 53    ments that are required to be maintained under the medicaid provider agreement
 54    executed  by such provider or formerly enrolled provider as may be relevant to
 55    an investigation of fraud or other crime directly related to the use of medic-
                                                                        
                                       11
                                                                        
  1    aid program funds or services provided through the medicaid program  that  are
  2    not  already in the possession of the director of the department of health and
  3    welfare or his designated agent.  The  attorney  general  or  any  prosecuting
  4    attorney  or  the  designated agent of either may also compel testimony by the
  5    custodian of the items subpoenaed concerning the production  and  authenticity
  6    of those items. Subpoenas for records or information which are not required to
  7    be maintained under a provider agreement shall only be issued through subpoena
  8    powers  in  judicial  proceedings.  A subpoena under this subsection (2) shall
  9    describe the items required to be produced with particularity and prescribe  a
 10    return  date  of  a  reasonable  period  of time within which the items can be
 11    assembled and made available to the attorney general or any prosecuting attor-
 12    ney or the designated agent of either.
 13        (3)  Subpoenas issued pursuant to this section shall be served and witness
 14    fees and mileage paid as allowed in civil cases in the district courts of this
 15    state.
 16        (4)  Inspectors and iInvestigators employed  by  the  Idaho  state  police
 17    attorney general for the enforcement of this act investigation and prosecution
 18    of  providers  of services pursuant to the medicaid program shall have all the
 19    authority given by statute to peace officers of the state of Idaho, including,
 20    but not limited to, authority to obtain, serve and execute warrants of  arrest
 21    and warrants of search and seizure.
                                                                        
 22        SECTION  8.  That  Section 56-227D, Idaho Code, be, and the same is hereby
 23    amended to read as follows:
                                                                        
 24        56-227D.  FEDERAL FOOD STAMPS -- UNAUTHORIZED USE -- EXCEPTION --  DEFINI-
 25    TION.  (a1) It  is  a  misdemeanor  for any person to buy, receive, sell, give
 26    away, dispose of, exchange or barter any federal food stamps of a value of one
 27    hundred fifty dollars ($150) or less, except for the eligible foods for  which
 28    they are issued.
 29        (b2)  It is a felony for any person to buy, receive, sell, give away, dis-
 30    pose  of,  exchange or barter any federal food stamps of a value exceeding one
 31    hundred fifty dollars ($150), except for the eligible foods for which they are
 32    issued.
 33        (c3)  This section does not apply to any person buying,  receiving,  sell-
 34    ing,  giving  away,  disposing  of,  exchanging  or bartering any federal food
 35    stamps subsequent to the redemption of such stamps in the manner  provided  by
 36    state or federal law.
 37        (d4)  As used in this section, federal food stamps refers to stamps issued
 38    for food by the United States department of agriculture or its duly authorized
 39    agent.
 40        (5)  This  section  shall be enforced by the director of the department of
 41    health and welfare in cooperation with local law enforcement  and  prosecuting
 42    agencies.  Such  enforcement  shall  not be the responsibility of the medicaid
 43    fraud control unit as provided in section 56-226, Idaho Code.
                                                                        
 44        SECTION 9.  That Chapter 2, Title 56, Idaho Code,  be,  and  the  same  is
 45    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
 46    ignated as Section 56-227E, Idaho Code, and to read as follows:
                                                                        
 47        56-227E.  OBSTRUCTION OF INVESTIGATION. (1) An obstruction  of  investiga-
 48    tion consists of knowingly:
 49        (a)  Providing  false information to, or knowingly withholding information
 50        from, any person requesting such information if that person is  authorized
 51        to  investigate  a violation of this chapter or to enforce the criminal or
                                                                        
                                       12
                                                                        
  1        civil  remedies  of  this  chapter  where  that  information  is  properly
  2        requested and is material to the investigation or enforcement; or
  3        (b)  Altering any document or record required to be retained  pursuant  to
  4        this  chapter  or any rule issued by the department of health and welfare,
  5        when the alteration is intended to mislead an investigation  and  concerns
  6        information material to that investigation.
  7        (2)  Whoever  commits an obstruction of investigation shall be guilty of a
  8    felony and shall be sentenced pursuant to the provisions  of  section  18-112,
  9    Idaho Code.
                                                                        
 10        SECTION  10.  That Section 67-1401, Idaho Code, be, and the same is hereby
 11    amended to read as follows:
                                                                        
 12        67-1401.  DUTIES OF ATTORNEY GENERAL. Except as otherwise provided in this
 13    chapter, it is the duty of the attorney general:
 14        (1.)  To perform all legal services for the state  and  to  represent  the
 15    state  and  all departments, agencies, offices, officers, boards, commissions,
 16    institutions and other state entities, in all courts and before  all  adminis-
 17    trative tribunals or bodies of any nature. Representation shall be provided to
 18    those  entities  exempted pursuant to the provisions of section 67-1406, Idaho
 19    Code. Whenever required to attend upon any court  or  administrative  tribunal
 20    the  attorney  general  shall  be  allowed  necessary and actual expenses, all
 21    claims for which shall be audited by the state board of examiners.
 22        (2.)  To advise all departments, agencies, offices, officers, boards, com-
 23    missions, institutions and other state entities in all matters involving ques-
 24    tions of law.
 25        (3.)  After judgment in any of the causes referred to in the first  subdi-
 26    vision, to direct the issuing of such process as may be necessary to carry the
 27    same into execution.
 28        (4.)  To  account  for  and  pay  over  to  the  proper officer all moneys
 29    received which belong to the state.
 30        (5.)  To supervise nonprofit  corporations,  corporations,  charitable  or
 31    benevolent societies, person or persons holding property subject to any public
 32    or  charitable  trust  and  to enforce whenever necessary any noncompliance or
 33    departure from the general purpose of such trust and, in order  to  accomplish
 34    such purpose, said nonprofit corporations, corporations, charitable or benevo-
 35    lent  societies,  person  or persons holding property subject to any public or
 36    charitable trust are subject at all times to examination by the attorney  gen-
 37    eral, on behalf of the state, to ascertain the condition of its affairs and to
 38    what  extent,  if  at  all, said trustee or trustees may have failed to comply
 39    with trusts said trustee or trustees have assumed or may  have  departed  from
 40    the  general  purpose  for which it was formed. In case of any such failure or
 41    departure, the attorney general shall institute, in the name of the state, any
 42    proceeding necessary to enforce compliance with the terms of the trust or  any
 43    departure therefrom.
 44        (6.)  To  give  an opinion in writing, without fee, to  the legislature or
 45    either house thereof, or any senator or representative, and to  the  governor,
 46    secretary  of  state,  treasurer,  state controller, and the superintendent of
 47    public instruction, when requested, upon any question of law relating to their
 48    respective offices. The attorney general shall keep a record  of  all  written
 49    opinions  rendered  by the office and such opinions shall be compiled annually
 50    and made available for public inspection. All costs incurred in  the  prepara-
 51    tion  of said opinions shall be borne by the office of the attorney general. A
 52    copy of the opinions shall be furnished to the supreme court and to the  state
 53    librarian.
                                                                        
                                       13
                                                                        
  1        (7.)  When  required by the public service, to repair to any county in the
  2    state and assist the prosecuting attorney thereof in the discharge of duties.
  3        (8.)  To bid upon and purchase, when necessary, in the name of the  state,
  4    and under the direction of the state controller, any property offered for sale
  5    under execution issued upon judgments in favor of or for the use of the state,
  6    and to enter satisfaction in whole or in part of such judgments as the consid-
  7    eration for such purchases.
  8        (9.)  Whenever the property of a judgment debtor in any judgment mentioned
  9    in  the preceding subdivision has been sold under a prior judgment, or is sub-
 10    ject to any judgment, lien, or encumbrance, taking precedence of the  judgment
 11    in  favor of the state, under the direction of the state controller, to redeem
 12    such property from such prior judgment, lien, or encumbrance; and all sums  of
 13    money necessary for such redemption must, upon the order of the board of exam-
 14    iners, be paid out of any money appropriated for such purposes.
 15        (10.) When  necessary  for  the  collection or enforcement of any judgment
 16    hereinbefore mentioned, to institute and prosecute, in behalf  of  the  state,
 17    such suits or other proceedings as may be necessary to set aside and annul all
 18    conveyances  fraudulently made by such judgment debtors; the cost necessary to
 19    the prosecution must, when allowed by the board of examiners, be paid  out  of
 20    any appropriations for the prosecution of delinquents.
 21        (11.) To  exercise  all  the common law power and authority usually apper-
 22    taining to the office and to discharge the other duties prescribed by law.
 23        (12.) To report to the governor, at the time required by  this  code,  the
 24    condition  of  the affairs of the attorney general's office and of the reports
 25    received from prosecuting attorneys.
 26        (13.) To appoint deputy attorneys general  and  special  deputy  attorneys
 27    general  and  other necessary staff to assist in the performance of the duties
 28    of the office. Such deputies and staff shall be nonclassified employees within
 29    the meaning of section 67-5302, Idaho Code.
 30        (14)  To establish a medicaid fraud control unit pursuant  to  the  provi-
 31    sions  of section 56-226, Idaho Code, and to exercise concurrent investigative
 32    and prosecutorial authority and  responsibility  with  county  prosecutors  to
 33    prosecute  persons  for the violation of the criminal provisions of chapter 2,
 34    title 56, Idaho Code, and for criminal offenses that are not defined  in  said
 35    chapter  2,  title 56, Idaho Code, but that involve or are directly related to
 36    the use of medicaid program funds or services provided  through  the  medicaid
 37    program.
                                                                        
                                       14
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                               HOUSE BILL NO. 166, As Amended
                                                                        
                              BY HEALTH AND WELFARE COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO MEDICAID; AMENDING SECTION 15-8-103, IDAHO CODE, TO MAKE A TECHNI-
  3        CAL CORRECTION; AMENDING SECTION 56-209h, IDAHO CODE, TO DEFINE A TERM, TO
  4        PROVIDE  FOR A MEDICAID FRAUD PROGRAM IN THE DEPARTMENT OF HEALTH AND WEL-
  5        FARE AND THE SCOPE OF SUCH PROGRAM,  TO  REMOVE  A  TIME  REQUIREMENT,  TO
  6        REMOVE  A  CONDITION  FOR  ACTION, TO PROVIDE FOR ACTION UPON REFERRAL, TO
  7        PROVIDE REFERRAL AND COMPLIANCE REQUIREMENTS, TO PROVIDE FOR A MINIMUM FOR
  8        COST RECOVERY AND TO MAKE A  TECHNICAL  CORRECTION;  AMENDING  CHAPTER  2,
  9        TITLE  56, IDAHO CODE, BY THE ADDITION OF NEW SECTIONS 56-209o AND 56-226,
 10        IDAHO CODE, TO PROVIDE FOR RECORD RETENTION REQUIREMENTS, TO  PROVIDE  FOR
 11        CRIMINAL PENALTIES, TO ESTABLISH IN THE OFFICE OF THE ATTORNEY GENERAL THE
 12        MEDICAID  FRAUD CONTROL UNIT, TO PROVIDE THE DUTIES, AUTHORITY AND RESPON-
 13        SIBILITIES OF THE UNIT, TO PROVIDE EXCLUSIVE CONTROL OF THE  UNIT  AND  TO
 14        DEFINE TERMS; AMENDING SECTION 56-227, IDAHO CODE, TO REMOVE A REQUIREMENT
 15        FOR  THE DEPARTMENT OF HEALTH AND WELFARE TO ESTABLISH AND OPERATE A FRAUD
 16        CONTROL PROGRAM; AMENDING SECTION 56-227B, IDAHO CODE, TO PROVIDE FOR  THE
 17        RIGHT  OF  THE ATTORNEY GENERAL TO CAUSE CERTAIN LEGAL ACTION TO BE UNDER-
 18        TAKEN, TO PROVIDE FOR COSTS AND REASONABLE ATTORNEY'S FEES TO  BE  AWARDED
 19        TO  THE  PREVAILING  PARTY,  TO  PROVIDE  FOR THE DISPOSITION OF COSTS AND
 20        ATTORNEY'S FEES AND TO  MAKE  A  TECHNICAL  CORRECTION;  AMENDING  SECTION
 21        56-227C,  IDAHO CODE, TO REQUIRE PERSONS ASKING TO BE EXCUSED FROM ATTEND-
 22        ING, PRODUCING OR TESTIFYING ON THE GROUNDS OF SELF-INCRIMINATION TO  COM-
 23        PLY  WITH  THE  REQUEST, TO PROVIDE FOR THE USE OF INFORMATION PROVIDED BY
 24        PERSONS PRIVILEGED TO WITHHOLD INFORMATION, TO PROVIDE  AUTHORITY  TO  THE
 25        ATTORNEY  GENERAL AND ANY PROSECUTING ATTORNEY TO ISSUE SUBPOENAS AND COM-
 26        PEL TESTIMONY FROM CUSTODIANS, TO PROVIDE SUBPOENA REQUIREMENTS,  TO  PRO-
 27        VIDE  PROCEDURE  AND  GROUNDS  FOR MODIFYING OR QUASHING A SUBPOENA AND TO
 28        PROVIDE PEACE OFFICER STATUS TO INVESTIGATORS  EMPLOYED  BY  THE  ATTORNEY
 29        GENERAL;  AMENDING  SECTION  56-227D,  IDAHO  CODE, TO PROVIDE ENFORCEMENT
 30        AUTHORITY TO THE DIRECTOR OF THE DEPARTMENT OF HEALTH AND WELFARE, TO PRO-
 31        VIDE THAT SUCH ENFORCEMENT IS NOT THE RESPONSIBILITY OF THE MEDICAID FRAUD
 32        UNIT AND TO MAKE TECHNICAL CORRECTIONS;  AMENDING  CHAPTER  2,  TITLE  56,
 33        IDAHO  CODE, BY THE ADDITION OF A NEW SECTION 56-227E, IDAHO CODE, TO PRO-
 34        VIDE A DESCRIPTION OF OBSTRUCTION OF INVESTIGATION AND TO PROVIDE CRIMINAL
 35        PENALTIES; AND AMENDING SECTION 67-1401, IDAHO CODE, TO REVISE  DUTIES  OF
 36        THE ATTORNEY GENERAL AND TO MAKE TECHNICAL CORRECTIONS.
                                                                        
 37    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 38        SECTION 11.  That Section 15-8-103, Idaho Code, be, and the same is hereby
 39    amended to read as follows:
                                                                        
 40        15-8-103.  DEFINITIONS.  The  definitions in this section apply throughout
 41    this chapter unless the context clearly requires otherwise:
 42        (1)  "Matter" includes any issue, question or dispute involving:
 43        (a)  The determination of any  class  of  creditors,  devisees,  legatees,
 44        heirs,  next  of  kin,  or  other  persons interested in an estate, trust,
 45        nonprobate asset, or with respect to any other asset or property  interest
 46        passing at death;
                                                                        
                                       15
                                                                        
  1        (b)  The  direction  of  a  personal representative or trustee to do or to
  2        abstain from doing any act in a fiduciary capacity;
  3        (c)  The determination of any question arising in the administration of an
  4        estate or trust, or with respect to any nonprobate asset, or with  respect
  5        to  any  other  asset  or  property  interest  passing  at death, that may
  6        include, without limitation, questions relating to:
  7             (i)   The construction of wills, trusts, devolution  agreements,  and
  8             other writings;
  9             (ii)  A change of personal representative or trustee;
 10             (iii) A change of the situs of a trust;
 11             (iv)  An accounting from a personal representative or trustee; or
 12             (v)   The  determination  of  fees  for  a personal representative or
 13             trustee;
 14        (d)  The grant to a personal representative or trustee of any necessary or
 15        desirable power not otherwise granted in the governing instrument or given
 16        by law;
 17        (e)  The amendment, reformation, or conformation of  a  will  or  a  trust
 18        instrument  to  comply  with statutes and regulations of the United States
 19        internal revenue service in order to more efficiently allocate  exemptions
 20        or  to  achieve  qualification  for  deductions,  elections, and other tax
 21        requirements including, but not limited to, the qualification of any  gift
 22        thereunder  for  the benefit of a surviving spouse who is not a citizen of
 23        the United States for the estate tax marital deduction permitted  by  fed-
 24        eral  law,  including  the  addition  of  mandatory  governing  instrument
 25        requirements  for  a  qualified  domestic trust under section 2056A of the
 26        Internal Revenue Code, the qualification of any gift thereunder as a qual-
 27        ified conservation easement as permitted by federal law, or the qualifica-
 28        tion of any gift for the charitable estate tax deduction permitted by fed-
 29        eral  law,  including  the  addition  of  mandatory  governing  instrument
 30        requirements for a charitable remainder trust; and
 31        (f)  With respect to any nonprobate asset, or with respect  to  any  other
 32        asset  or  property interest passing at death, including actual joint ten-
 33        ancy property, property subject to a devolution agreement, or assets  sub-
 34        ject to a pay on death or transfer on death designation:
 35             (i)   The  ascertaining  of any class of creditors or others for pur-
 36             poses of section 15-6-107, Idaho Code;
 37             (ii)  The ordering of a custodian of any of  the  decedent's  records
 38             relating  to  a nonprobate asset to do or abstain from doing any par-
 39             ticular act with respect to those records;
 40             (iii) The determination of any question arising in the administration
 41             of a nonprobate asset under section 15-6-107, Idaho Code;
 42             (iv)  The determination of any questions relating to  the  abatement,
 43             rights  of creditors, or other matter relating to the administration,
 44             settlement, or final disposition of a nonprobate  asset  under  title
 45             15, Idaho Code; and
 46             (v)   The  resolution of any matter referencing this chapter, includ-
 47             ing a determination of any questions relating  to  the  ownership  or
 48             distribution  of an individual retirement account on the death of the
 49             spouse of the account holder as contemplated by  section  11-604A(6),
 50             Idaho Code;
 51        (g)  The  resolution  of any other matter that could affect the nonprobate
 52        asset.
 53        (2)  "Nonprobate assets" means assets that are covered by chapter 6, title
 54    15, Idaho Code.
 55        (3)  "Party" or "parties" means each of the following persons who  has  an
                                                                        
                                       16
                                                                        
  1    interest  in  the  subject  of  the  particular  proceeding and whose name and
  2    address are known to, or are reasonably ascertainable by, the petitioner:
  3        (a)  The trustor if living;
  4        (b)  The trustee;
  5        (c)  The personal representative;
  6        (d)  An heir;
  7        (e)  A beneficiary, including devisees, legatees, and trust beneficiaries;
  8        (f)  The surviving spouse of a decedent with respect to his or her  inter-
  9        est in the decedent's property;
 10        (g)  A guardian ad litem;
 11        (h)  A creditor;
 12        (i)  Any other person who has an interest in the subject of the particular
 13        proceeding;
 14        (j)  The  attorney  general  if  required under section 67-1401(5.), Idaho
 15        Code;
 16        (k)  Any duly appointed and acting legal representative of a party such as
 17        a guardian, conservator, special representative, or attorney in fact;
 18        (l)  Where applicable, the virtual representative of any person  described
 19        in  this  subsection  (3),  the giving of notice to whom would meet notice
 20        requirements as provided in section 15-8-204, Idaho Code; and
 21        (m)  The owner or  the  personal  representative  of  the  estate  of  the
 22        deceased owner of the nonprobate asset that is the subject of the particu-
 23        lar proceeding, if the subject of the particular proceeding relates to the
 24        beneficiary's  liability to a decedent's estate or creditors under section
 25        15-6-107, Idaho Code.
 26        (4)  "Persons interested in the estate or trust"  means  the  trustor,  if
 27    living,  all  persons  beneficially interested in the estate or trust, persons
 28    holding powers over the trust or estate assets, the attorney  general  in  the
 29    case  of  any charitable trust where the attorney general would be a necessary
 30    party to judicial proceedings concerning the trust, and any personal represen-
 31    tative or trustee of the estate or trust.
 32        (5)  "Representative" and other similar terms refer to a person who virtu-
 33    ally represents another person under section 15-8-205, Idaho Code.
 34        (6)  "Trustee" means any acting and qualified trustee of the trust.
                                                                        
 35        SECTION 12.  That Section 56-209h, Idaho Code, be, and the same is  hereby
 36    amended to read as follows:
                                                                        
 37        56-209h.  ADMINISTRATIVE  REMEDIES.  (1) Definitions. For purposes of this
 38    section:
 39        (a)  "Abuse" or "abusive" means provider practices that  are  inconsistent
 40        with sound fiscal, business, or medical practices, and result in an unnec-
 41        essary  cost  to the medical assistance program, in reimbursement for ser-
 42        vices that are not medically necessary or that fail to meet professionally
 43        recognized standards for health care, or in physical harm, pain or  mental
 44        anguish to a medical assistance recipient.
 45        (b)  "Claim"  means any request or demand for payment of items or services
 46        under the state's medical assistance program, whether under a contract  or
 47        otherwise.
 48        (c)  "Fraud"  or "Ffraudulent" means an intentional deception or misrepre-
 49        sentation made by a person with the knowledge  that  the  deception  could
 50        result in some unauthorized benefit to himself or some other person.
 51        (d)  "Knowingly,"  "known"  or  "with knowledge" means that a person, with
 52        respect to information or an action:
 53             (i)   Has actual knowledge of the information or action; or
                                                                        
                                       17
                                                                        
  1             (ii)  Acts in deliberate ignorance of the truth  or  falsity  of  the
  2             information or the correctness or incorrectness of the action; or
  3             (iii) Acts  in  reckless  disregard  of  the  truth or falsity of the
  4             information or the correctness or incorrectness of the action.
  5        (e)  "Managing employee" means a general manager, business manager, admin-
  6        istrator, director or other individual who exercises operational or  mana-
  7        gerial control over, or who directly or indirectly conducts the day-to-day
  8        operation of, an institution, organization or agency.
  9        (f)  "Medicaid  fraud control unit" means that medicaid fraud control unit
 10        as provided for in section 56-226, Idaho Code.
 11        (g)  "Ownership or control interest" means a person or entity that:
 12             (i)   Has an ownership interest totaling twenty-five percent (25%) or
 13             more in an entity; or
 14             (ii)  Is an officer or director of an entity that is organized  as  a
 15             corporation; or
 16             (iii) Is  a  partner in an entity that is organized as a partnership;
 17             or
 18             (iv)  Is a managing member in an entity that is organized as  a  lim-
 19             ited liability company.
 20        (2)  The  department  shall  establish and operate an administrative fraud
 21    control program to enforce violations of the provisions of this chapter and of
 22    the state plan pursuant to subchapters XIX  and  XXI,  chapter  7,  title  42,
 23    U.S.C., that are outside the scope of the duties of the medicaid fraud control
 24    unit and to render and receive referrals from and to said unit.
 25        (3)  Review  of  dDocumentation  of  services.  All  claims  submitted  by
 26    providers for payment are subject to prepayment and postpayment review as des-
 27    ignated  by rule. Except as otherwise provided by rule, providers shall gener-
 28    ate documentation at the time of service sufficient to support each claim. and
 29    shall retain the documentation for a minimum of five (5) years from  the  date
 30    the  item or service was provided. The department or authorized agent shall be
 31    given immediate access to such documentation upon written request.
 32        (34)  Immediate action. In the event that the department identifies a sus-
 33    pected case of fraud or abuse, and the department has reason to  believe  that
 34    payments  made  during  the  investigation  may be difficult or impractical to
 35    recover, the department may suspend or withhold payments to the provider pend-
 36    ing investigation. In the event that the  department  identifies  a  suspected
 37    case  of  fraud  or abuse and it determines that it is necessary to prevent or
 38    avoid immediate danger to the public health or safety, the department may sum-
 39    marily suspend a provider agreement pending investigation. When payments  have
 40    been  suspended or withheld or a provider agreement suspended pending investi-
 41    gation, the department shall provide for a hearing within thirty (30) days  of
 42    receipt of any duly filed notice of appeal.
 43        (45)  Recovery  of  payments.  Upon referral of a matter from the medicaid
 44    fraud control unit,  or iIf it is determined by the department that any condi-
 45    tion of payment contained in rule, regulation, statute, or provider  agreement
 46    was not met, the department may initiate administrative proceedings to recover
 47    any payments made for items or services. Interest shall accrue on overpayments
 48    at  the  statutory  rate  set forth in section 28-22-104, Idaho Code, from the
 49    date of final determination of the amount owed for items or services until the
 50    date of recovery.
 51        (56)  Provider status. The department may terminate the provider agreement
 52    or otherwise deny provider status to any individual or entity who:
 53        (a)  Submits a claim with knowledge that the claim is incorrect, including
 54        reporting costs as allowable which were known to be disallowed in a previ-
 55        ous audit, unless the provider clearly indicates that the  item  is  being
                                                                        
                                       18
                                                                        
  1        claimed  to  establish  the basis for an appeal and each disputed item and
  2        amount is specifically identified; or
  3        (b)  Submits a fraudulent claim; or
  4        (c)  Knowingly makes a false statement or representation of material  fact
  5        in  any document required to be maintained or submitted to the department;
  6        or
  7        (d)  Submits a claim for an item or service known to be medically unneces-
  8        sary; or
  9        (e)  Fails to provide, upon written request by the  department,  immediate
 10        access to documentation required to be maintained; or
 11        (f)  Fails  repeatedly or substantially to comply with the rules and regu-
 12        lations governing medical assistance payments; or
 13        (g)  Knowingly violates any material term or  condition  of  its  provider
 14        agreement; or
 15        (h)  Has  failed  to  repay,  or  was  a  "managing  employee"  or  had an
 16        "ownership or control interest" in any entity that has  failed  to  repay,
 17        any overpayments or claims previously found to have been obtained contrary
 18        to statute, rule, regulation or provider agreement; or
 19        (i)  Has  been found, or was a "managing employee" in any entity which has
 20        been found, to have engaged in fraudulent conduct or  abusive  conduct  in
 21        connection with the delivery of health care items or services; or
 22        (j)  Fails  to meet the qualifications specifically required by rule or by
 23        any applicable licensing board.
 24    Any individual or entity denied provider status under this section may be pre-
 25    cluded from participating as a provider in the medical assistance program  for
 26    up to five (5) years from the date the department's action becomes final.
 27        (7)  The  department must refer all cases of suspected fraud to the medic-
 28    aid fraud control unit and shall promptly comply with  any  request  from  the
 29    medicaid  fraud  control  unit for access to and free copies of any records or
 30    information kept by the  department  or  its  contractors,  computerized  data
 31    stored  by  the  department  or  its  contractors, and any information kept by
 32    providers to which the department is authorized access by law.
 33        (68)  Civil monetary penalties. The department may also assess civil mone-
 34    tary penalties against a provider and any  officer,  director,  owner,  and/or
 35    managing  employee of a provider for conduct identified in subsections (56)(a)
 36    through (56)(i) of this section. The amount of the penalties shall  be  up  to
 37    one  thousand  dollars  ($1,000)  for each item or service improperly claimed,
 38    except that in the case of multiple penalties the department  may  reduce  the
 39    penalties  to  not  less  than twenty-five percent (25%) of the amount of each
 40    item or service improperly claimed if an amount  can  be  readily  determined.
 41    Each  line  item of a claim, or cost on a cost report is considered a separate
 42    claim. These penalties are intended to be remedial, recovering  at  a  minimum
 43    costs  of investigation and administrative review, and placing the costs asso-
 44    ciated with noncompliance on the offending provider.
 45        (79)  Exclusion. Any individual or entity convicted of a criminal  offense
 46    related  to the delivery of an item or service under any state or federal pro-
 47    gram shall be excluded from program participation for a  period  of  not  less
 48    than  ten (10) years. Unless otherwise provided in this section or required by
 49    federal law, the department may exclude any individual or entity for a  period
 50    of  not  less than one (1) year for any conduct for which the secretary of the
 51    department of health and human services or designee could exclude an  individ-
 52    ual or entity.
 53        (810) Adoption of rules. The department shall promulgate such rules as are
 54    necessary to carry out the policies and purposes of this section.
                                                                        
                                       19
                                                                        
  1        SECTION  13.  That  Chapter  2,  Title 56, Idaho Code, be, and the same is
  2    hereby amended by the addition thereto of a NEW SECTION, to be known and  des-
  3    ignated as Section 56-209o, Idaho Code, and to read as follows:
                                                                        
  4        56-209o.  FAILURE  TO  RETAIN  RECORDS.  (1)  Whoever receives payment for
  5    treatment, services or goods under the provisions of this chapter or under the
  6    state plan pursuant to subchapter XIX or XXI, chapter  7,  title  42,  U.S.C.,
  7    shall  retain for a period of at least five (5) years all medical and business
  8    records relating to:
  9        (a)  The treatment or care of any recipient;
 10        (b)  Services or goods provided to any recipient;
 11        (c)  Rates paid by the department under  the  program  on  behalf  of  any
 12        recipient; and
 13        (d)  Any  records  required to be maintained by rule of the department for
 14        administration of the medicaid program.
 15        (2)  It shall be unlawful with an intent to evade or avoid the  provisions
 16    of this act: to fail to retain the records specified in subsection (1) of this
 17    section  for  a  period  of  at least five (5) years from the date payment was
 18    claimed or received, whichever is later; or to knowingly destroy or cause  the
 19    records  specified  in  subsection  (1) of this section to be destroyed within
 20    five (5) years from the date payment was claimed  or  received,  whichever  is
 21    later. Any person who, with an intent to evade or avoid the provisions of this
 22    act,  fails  to  retain  records  or  destroys records or causes records to be
 23    destroyed as provided in this subsection (2), with an intent to evade or avoid
 24    the provisions of this act, shall be subject to the following  criminal  sanc-
 25    tions:
 26        (a)  If  the  treatment,  services  or  goods  for  which records were not
 27        retained or for which records were destroyed amount to not more  than  one
 28        thousand dollars ($1,000), the person shall be guilty of a misdemeanor and
 29        shall be sentenced pursuant to section 18-113, Idaho Code.
 30        (b)  If  the  value  of the treatment, services or goods for which records
 31        were not retained or for which records were destroyed  is  more  than  one
 32        thousand  dollars  ($1,000),  the  person  shall be guilty of a felony and
 33        shall be sentenced pursuant to section 18-112, Idaho Code.
 34        (c)  If the records not retained or destroyed were used  in  whole  or  in
 35        part to determine a rate of payment under the program, the person shall be
 36        guilty of a misdemeanor and shall be sentenced pursuant to section 18-113,
 37        Idaho Code.
                                                                        
 38        SECTION  14.  That  Chapter  2,  Title 56, Idaho Code, be, and the same is
 39    hereby amended by the addition thereto of a NEW SECTION, to be known and  des-
 40    ignated as Section 56-226, Idaho Code, and to read as follows:
                                                                        
 41        56-226.  MEDICAID  FRAUD  CONTROL UNIT. (1) There is hereby established in
 42    the office of the attorney general the medicaid fraud control unit which shall
 43    have the authority and responsibilities as set forth in this section.
 44        (2)  Notwithstanding the  authority  and  responsibility  granted  to  the
 45    director  of  the  department to provide for fraud control in other aspects of
 46    public assistance and public health programs, the medicaid fraud control  unit
 47    shall have the authority and responsibility to conduct a statewide program for
 48    the  investigation  and prosecution of violations of all applicable Idaho laws
 49    pertaining to fraud in the administration of the medicaid program, the  provi-
 50    sion  of  medical  assistance  and  in  the activities of providers of medical
 51    assistance and services under the state plan. Further, upon  approval  of  the
 52    inspector  general  of the relevant federal agency, the office of the attorney
                                                                        
                                       20
                                                                        
  1    general shall have the authority and  responsibility  to  investigate  and  to
  2    prosecute  violations  of  any aspect of the provision of health care services
  3    and activities of providers of such services under  any  federal  health  care
  4    program as defined in 42 U.S.C. section 1320(a)-7b(f)1, if the suspected fraud
  5    or  violation  of  law  in  such investigation or prosecution is substantially
  6    related to the state plan. The medicaid fraud control unit shall be under  the
  7    exclusive  control  of  the attorney general and be separate and distinct from
  8    the department. No official from the department shall have authority to review
  9    or override the prosecutorial decisions made by  the  medicaid  fraud  control
 10    unit.
 11        (3)  The medicaid fraud control unit shall also:
 12        (a)  Review  complaints  of  abuse  or  neglect  of medicaid recipients in
 13        health care facilities which receive payment pursuant to  the  state  plan
 14        and  may  review  complaints  of the misappropriation of patients' private
 15        funds in such facilities; and
 16        (b)  Review complaints of abuse or neglect of medicaid recipients residing
 17        in a board and care facility.
 18        (4)  The medicaid fraud control unit shall attempt to collect or refer  to
 19    the  department  for  collection  overpayments  that  are made to providers of
 20    facilities under the state plan or under any federal health  care  program  to
 21    health  care  facilities  that  are the result of fraudulent acts and that are
 22    discovered by the medicaid fraud control unit in carrying out its responsibil-
 23    ities under this section. Notwithstanding any other provision of  Idaho  Code,
 24    all funds collected by the medicaid fraud control unit in accordance with this
 25    subsection (4) shall be deposited into the state general fund.
 26        (5)  The office of the attorney general shall employ such auditors, attor-
 27    neys,  investigators  and  other  personnel  as are necessary to carry out the
 28    responsibilities of the medicaid fraud control unit as set  forth  under  this
 29    section.
 30        (6)  The  office  of the attorney general shall submit to the secretary of
 31    the federal department of health and human services applications  and  reports
 32    containing such information as is determined by the secretary by regulation to
 33    be  necessary to meet the requirements of subchapter XIX, chapter 7, title 42,
 34    U.S.C.
 35        (7)  In carrying out its duties and responsibilities under  this  section,
 36    the medicaid fraud control unit may:
 37        (a)  Request  and receive the assistance of any prosecutor or law enforce-
 38        ment agency in the investigation and prosecution of any violation  of  any
 39        applicable  Idaho  laws  pertaining  to fraud in the administration of the
 40        medicaid program, the provision of medical assistance and in  the  activi-
 41        ties of providers of medical assistance and services under the state plan;
 42        (b)  Enter upon the premises of any provider participating in the medicaid
 43        program to:
 44             (i)   Examine all accounts and records that are relevant in determin-
 45             ing the existence of fraud in the medicaid program;
 46             (ii)  Investigate alleged abuse or neglect of medicaid recipients; or
 47             (iii) Investigate   alleged  misappropriation  of  patients'  private
 48             funds. The accounts or records of a nonmedicaid recipient may not  be
 49             reviewed  by, or turned over to the medicaid fraud control unit with-
 50             out the patient's written consent or a court order; and
 51        (c)  Notwithstanding any other provision of law, upon written request have
 52        full access to all records held by a medicaid provider, or  by  any  other
 53        person  on  his  or  her behalf, that are relevant to the determination of
 54        the:
 55             (i)   Existence of civil violations or criminal offenses  under  this
                                                                        
                                       21
                                                                        
  1             chapter or related offenses;
  2             (ii)  Existence of medicaid recipient abuse, mistreatment or neglect;
  3             or
  4             (iii) Theft of medicaid recipient funds.
  5        No  person holding such records shall refuse to provide the medicaid fraud
  6        control  unit access to such records for the purposes  described  in  this
  7        section  on  the basis that release would violate the medicaid recipient's
  8        right of privacy or privilege against disclosure or  use  or  any  profes-
  9        sional or other privilege or right.
 10        (8)  The medicaid fraud control unit shall safeguard the privacy rights of
 11    medicaid  recipients  to  avoid unnecessary disclosure of personal information
 12    concerning named medicaid recipients. The  medicaid  fraud  control  unit  may
 13    transmit  such  information that it deems appropriate to the department and to
 14    other agencies concerned with the regulation  of  health  care  facilities  or
 15    health professionals.
 16        (9)  The  attorney  general shall have the authority to adopt rules neces-
 17    sary to implement the duties and responsibilities  assigned  to  the  medicaid
 18    fraud control unit under this section.
 19        (10) As used in this section:
 20        (a)  "Board  and care facility" means a provider of medicaid services in a
 21        residential setting which receives payment from or on behalf of two (2) or
 22        more unrelated adults who reside in such facility, and for whom one (1) or
 23        more of the following is provided:
 24             (i)   Nursing care services provided by, or under the supervision of,
 25             a registered nurse, licensed  practical  nurse  or  certified  nurses
 26             aide; or
 27             (ii)  A substantial amount of personal care services that assist res-
 28             idents  with  the  activities  of  daily  living,  including personal
 29             hygiene, dressing, bathing, eating, toileting,  ambulation,  transfer
 30             of positions, self-medication, body care, travel to medical services,
 31             essential shopping, meal preparation, laundry and housework.
 32        (b)  "Department" means the Idaho department of health and welfare.
 33        (c)  "Director"  means  the director of the Idaho department of health and
 34        welfare.
 35        (d)  "Medicaid" means Idaho's medical assistance program.
 36        (e)  "Provider" means any individual, partnership,  association,  corpora-
 37        tion  or  organization,  public  or private, which provides residential or
 38        assisted living services, certified family home services, nursing facility
 39        services or services offered pursuant to medical assistance.
 40        (f)  "Recipient" means an individual determined eligible by  the  director
 41        for the services provided in the state plan for medicaid.
 42        (g)  "State  plan"  means the Idaho state plan pursuant to subchapter XIX,
 43        chapter 7, title 42 U.S.C.
                                                                        
 44        SECTION 15.  That Section 56-227, Idaho Code, be, and the same  is  hereby
 45    amended to read as follows:
                                                                        
 46        56-227.  FRAUDULENT  ACTS  --  PENALTY.  (a) Whoever knowingly obtains, or
 47    attempts to obtain, or aids or abets any person in obtaining, by  means  of  a
 48    willfully  false statement or representation, material omission, or fraudulent
 49    devices, public assistance, relief or federal-aid assistance to  which  he  is
 50    not  entitled,  or  in an amount greater than that to which he is justly enti-
 51    tled, shall be punished in the same manner and to the same extent as for  lar-
 52    ceny  or  theft  of the money or value of the public assistance so obtained or
 53    attempted to be so obtained.
                                                                        
                                       22
                                                                        
  1        (b)  Whoever sells, conveys, mortgages or otherwise disposes of his  prop-
  2    erty,  real  or personal, or conceals his income or resources, for the purpose
  3    of rendering him eligible for any form of assistance, theretofore or  thereaf-
  4    ter  applied  for, to which he would  not otherwise be entitled, shall be pun-
  5    ished in the same manner and to the same extent as for larceny or theft of the
  6    money or value of the assistance so obtained or so attempted to be obtained.
  7        (c)  Every person who knowingly aids or abets any person in selling,  con-
  8    veying,  mortgaging  or otherwise disposing of his property, real or personal,
  9    or in concealing his income or resources  for the  purpose  of  rendering  him
 10    eligible  for any form of public assistance or relief, theretofore or thereaf-
 11    ter applied for and received, to which he would  not  otherwise  be  entitled,
 12    shall  be punished in the same manner and to the same extent as for larceny or
 13    theft of the money or value of the public assistance or relief so obtained  or
 14    attempted to be obtained.
 15        (d)  For  the purpose of this section federal-aid assistance shall include
 16    the specific categories of assistance for which provision is made in any  fed-
 17    eral law existing or hereafter enacted by the congress of the United States by
 18    which  payments are made from the federal government to the state in aid or in
 19    respect to payment by the state for welfare purposes to any category of  needy
 20    person  and  any  other  program of assistance for which provision for federal
 21    funds for aid may from time to time be made.
 22        (e)  The state department of health and welfare shall establish and  oper-
 23    ate a fraud control program as permitted by section 416 of the social security
 24    act as now or hereafter amended.
                                                                        
 25        SECTION  16.  That Section 56-227B, Idaho Code, be, and the same is hereby
 26    amended to read as follows:
                                                                        
 27        56-227B.  PROVIDER FRAUD --  DAMAGES.  Any  provider  who  knowingly  with
 28    intent  to defraud by means of false statement or representation, obtains com-
 29    pensation from public funds greater than that to which he is legally  entitled
 30    for  services  or  supplies furnished or purportedly furnished shall be liable
 31    for civil damages equal to three (3) times the amount by which any  figure  is
 32    falsely  overstated.   The director of the department of health and welfare or
 33    the attorney general shall have the right to cause legal action  to  be  taken
 34    for the recovery of such damages when persuaded that a reimbursement claim for
 35    payment  is  falsely overstated.  The burden of proof for such recovery action
 36    shall be that which is used in other civil actions for the  recovery  of  dam-
 37    ages.  The  remedy provided by this section  shall be in addition to any other
 38    remedy provided by law.
 39        If any provider of services or supplies is required to refund or repay all
 40    or part of any payment received by said provider under the provisions of  this
 41    section,  said  refund  or repayment shall bear interest from the date payment
 42    was made to such provider to the date of said refund  or  repayment.  Interest
 43    shall  accrue  at  the  rate of ten per cent percent (10%) per annum. If, as a
 44    result of such The prevailing party in an action, the provider of services  or
 45    supplies  is not required to refund or repay any payment received by said pro-
 46    vider under the terms of this section, shall be awarded costs  and  reasonable
 47    attorney's  fees shall be allowed the provider incurred in bringing or defend-
 48    ing the action. Notwithstanding any other provision of  the  Idaho  Code,  all
 49    costs  and  attorney's fees awarded to the department of health and welfare or
 50    the attorney general pursuant to this section  shall  be  deposited  into  the
 51    state general fund.
                                                                        
 52        SECTION  17.  That Section 56-227C, Idaho Code, be, and the same is hereby
                                                                        
                                       23
                                                                        
  1    amended to read as follows:
                                                                        
  2        56-227C.  SUBPOENA POWER. (1) The director, or his authorized  representa-
  3    tive,  and the director of the Idaho state police, or his authorized represen-
  4    tative, and any prosecuting attorney of any county, for the  purposes  contem-
  5    plated  by  this  act, have power to issue subpoenas, compel the attendance of
  6    witnesses, administer oaths, certify to official acts, take depositions within
  7    and without the state of Idaho, as now provided by law, compel the  production
  8    of  pertinent books, payrolls, accounts, papers, records, documents and testi-
  9    mony. If a person in attendance before such director or his authorized  repre-
 10    sentative  or  prosecuting  attorney  refuses, without reasonable cause, to be
 11    examined or to answer a legal and pertinent question, or to produce a book  or
 12    paper  or  other  evidence when ordered so to do by the director or his autho-
 13    rized representative, or prosecuting attorney, said director or his authorized
 14    representative or prosecuting attorney may apply to the judge of the  district
 15    court  of the county where such person is in attendance, upon affidavit for an
 16    order returnable in not less than two (2) or more than five (5) days,  direct-
 17    ing  such  person  to show cause before such judge, or any other judge of such
 18    district, why he should not be punished for contempt; upon the hearing of such
 19    order, if the judge shall determine that such person has refused, without rea-
 20    sonable cause or legal excuse, to be examined or to answer a legal  or  perti-
 21    nent  question, or to produce a book or paper which he was ordered to bring or
 22    produce, he may forthwith punish the offender as for contempt of court.
 23        (a)  No If any person shall asks to be excused from attending or  testify-
 24        ing  or  from producing any books, or payrolls, accounts, papers, records,
 25        or documents or other evidence in connection  with  any  investigation  or
 26        inquiry  by or upon any hearing before any officer so authorized upon pur-
 27        suant to this subsection (1), or in any proceeding or  action  before  any
 28        court  upon  a  charge or violation of this subsection (1),  on the ground
 29        that the testimony or evidence, books, papers or documents required of him
 30        may tend to incriminate him or subject him to penalty or  forfeiture;  but
 31        no  person  shall  be  prosecuted, punished or subjected to any penalty or
 32        forfeiture for or on account of any act, transaction, matter or thing con-
 33        cerning which he is compelled, after claiming his privileges against self-
 34        incrimination, to testify or produce evidence, documentary  or  otherwise,
 35        except  that any person so testifying shall not be exempt from prosecution
 36        and punishment for perjury committed in so testifying, and if such person,
 37        notwithstanding such request, is directed to give such testimony  or  pro-
 38        duce such evidence, the person must, if so directed by the director or his
 39        authorized representative, comply with such direction.
 40        (b)  After  complying,  and  if,  but  for this subsection (1), the person
 41        would have been privileged to withhold the answer given  or  the  evidence
 42        produced  by  him,  then  the  answer,  the  evidence  and any information
 43        directly or indirectly derived from the answer or  evidence,  may  not  be
 44        used against the compelled person in any manner in a criminal case, except
 45        that  the person may nevertheless be prosecuted or subjected to penalty or
 46        forfeiture for any  perjury,  false  swearing  or  contempt  committed  in
 47        answering  or failing to answer or in producing or failing to produce evi-
 48        dence in accordance with the order. Such  evidence  may  be  used  in  the
 49        refusal,  suspension or revocation of any license, permission or authority
 50        conferred, or to be conferred, pursuant to Idaho Code.
 51        (2)  The attorney general or any prosecuting attorney  or  the  designated
 52    agent  of either shall have the authority to issue subpoenas to an enrolled or
 53    formerly enrolled provider of services pursuant to  the  medicaid  program  to
 54    compel production of books, payrolls, accounts, papers, records, documents and
                                                                        
                                       24
                                                                        
  1    other  items  that may be relevant to an investigation of fraud or other crime
  2    directly related to the use of medicaid program  funds  or  services  provided
  3    through  the  medicaid  program  that are not already in the possession of the
  4    director of the department of health and welfare or his designated agent.  The
  5    attorney general or any prosecuting attorney or the designated agent of either
  6    may  also compel testimony by the custodian of the items subpoenaed concerning
  7    the production and authenticity of those items.
  8        (a)  A subpoena  under  this  subsection  (2)  shall  describe  the  items
  9        required  to be produced with particularity and prescribe a return date of
 10        a reasonable period of time within which the items can  be  assembled  and
 11        made  available to the attorney general or any prosecuting attorney or the
 12        designated agent of either.
 13        (b)  At any time before the return date specified  in  the  subpoena,  the
 14        enrolled or formerly enrolled provider who offers services pursuant to the
 15        medicaid  program may apply to a judge of the district court of the county
 16        where such provider is in attendance, for an order modifying  or  quashing
 17        the  subpoena. A subpoena that requests items that are reasonably relevant
 18        to an investigation of fraud or other crime directly related to the use of
 19        medicaid program funds or services provided through the medicaid  program,
 20        shall  not  be  modified or quashed. Probable cause for the issuance of an
 21        investigatory subpoena under this subsection (2) shall not be required.
 22        (3)  Subpoenas issued pursuant to this section shall be served and witness
 23    fees and mileage paid as allowed in civil cases in the district courts of this
 24    state.
 25        (4)  Inspectors and iInvestigators employed  by  the  Idaho  state  police
 26    attorney general for the enforcement of this act investigation and prosecution
 27    of  providers  of services pursuant to the medicaid program shall have all the
 28    authority given by statute to peace officers of the state of Idaho, including,
 29    but not limited to, authority to obtain, serve and execute warrants of  arrest
 30    and warrants of search and seizure.
                                                                        
 31        SECTION  18.  That Section 56-227D, Idaho Code, be, and the same is hereby
 32    amended to read as follows:
                                                                        
 33        56-227D.  FEDERAL FOOD STAMPS -- UNAUTHORIZED USE -- EXCEPTION --  DEFINI-
 34    TION.  (a1) It  is  a  misdemeanor  for any person to buy, receive, sell, give
 35    away, dispose of, exchange or barter any federal food stamps of a value of one
 36    hundred fifty dollars ($150) or less, except for the eligible foods for  which
 37    they are issued.
 38        (b2)  It is a felony for any person to buy, receive, sell, give away, dis-
 39    pose  of,  exchange or barter any federal food stamps of a value exceeding one
 40    hundred fifty dollars ($150), except for the eligible foods for which they are
 41    issued.
 42        (c3)  This section does not apply to any person buying,  receiving,  sell-
 43    ing,  giving  away,  disposing  of,  exchanging  or bartering any federal food
 44    stamps subsequent to the redemption of such stamps in the manner  provided  by
 45    state or federal law.
 46        (d4)  As used in this section, federal food stamps refers to stamps issued
 47    for food by the United States department of agriculture or its duly authorized
 48    agent.
 49        (5)  This  section  shall be enforced by the director of the department of
 50    health and welfare in cooperation with local law enforcement  and  prosecuting
 51    agencies.  Such  enforcement  shall  not be the responsibility of the medicaid
 52    fraud control unit as provided in section 56-226, Idaho Code.
                                                                        
                                       25
                                                                        
  1        SECTION 19.  That Chapter 2, Title 56, Idaho Code, be,  and  the  same  is
  2    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
  3    ignated as Section 56-227E, Idaho Code, and to read as follows:
                                                                        
  4        56-227E.  OBSTRUCTION OF INVESTIGATION. (1) An obstruction  of  investiga-
  5    tion consists of knowingly:
  6        (a)  Providing  false information to, or knowingly withholding information
  7        from, any person authorized to investigate a violation of this chapter  or
  8        to  enforce  the  criminal  or  civil  remedies of this chapter where that
  9        information is material to the investigation or enforcement; or
 10        (b)  Altering any document or record required to be retained  pursuant  to
 11        this  chapter  or any rule issued by the department of health and welfare,
 12        when the alteration is intended to mislead an investigation  and  concerns
 13        information material to that investigation.
 14        (2)  Whoever  commits an obstruction of investigation shall be guilty of a
 15    felony and shall be sentenced pursuant to the provisions  of  section  18-112,
 16    Idaho Code.
                                                                        
 17        SECTION  20.  That Section 67-1401, Idaho Code, be, and the same is hereby
 18    amended to read as follows:
                                                                        
 19        67-1401.  DUTIES OF ATTORNEY GENERAL. Except as otherwise provided in this
 20    chapter, it is the duty of the attorney general:
 21        (1.)  To perform all legal services for the state  and  to  represent  the
 22    state  and  all departments, agencies, offices, officers, boards, commissions,
 23    institutions and other state entities, in all courts and before  all  adminis-
 24    trative tribunals or bodies of any nature. Representation shall be provided to
 25    those  entities  exempted pursuant to the provisions of section 67-1406, Idaho
 26    Code. Whenever required to attend upon any court  or  administrative  tribunal
 27    the  attorney  general  shall  be  allowed  necessary and actual expenses, all
 28    claims for which shall be audited by the state board of examiners.
 29        (2.)  To advise all departments, agencies, offices, officers, boards, com-
 30    missions, institutions and other state entities in all matters involving ques-
 31    tions of law.
 32        (3.)  After judgment in any of the causes referred to in the first  subdi-
 33    vision, to direct the issuing of such process as may be necessary to carry the
 34    same into execution.
 35        (4.)  To  account  for  and  pay  over  to  the  proper officer all moneys
 36    received which belong to the state.
 37        (5.)  To supervise nonprofit  corporations,  corporations,  charitable  or
 38    benevolent societies, person or persons holding property subject to any public
 39    or  charitable  trust  and  to enforce whenever necessary any noncompliance or
 40    departure from the general purpose of such trust and, in order  to  accomplish
 41    such purpose, said nonprofit corporations, corporations, charitable or benevo-
 42    lent  societies,  person  or persons holding property subject to any public or
 43    charitable trust are subject at all times to examination by the attorney  gen-
 44    eral, on behalf of the state, to ascertain the condition of its affairs and to
 45    what  extent,  if  at  all, said trustee or trustees may have failed to comply
 46    with trusts said trustee or trustees have assumed or may  have  departed  from
 47    the  general  purpose  for which it was formed. In case of any such failure or
 48    departure, the attorney general shall institute, in the name of the state, any
 49    proceeding necessary to enforce compliance with the terms of the trust or  any
 50    departure therefrom.
 51        (6.)  To  give  an opinion in writing, without fee, to  the legislature or
 52    either house thereof, or any senator or representative, and to  the  governor,
                                                                        
                                       26
                                                                        
  1    secretary  of  state,  treasurer,  state controller, and the superintendent of
  2    public instruction, when requested, upon any question of law relating to their
  3    respective offices. The attorney general shall keep a record  of  all  written
  4    opinions  rendered  by the office and such opinions shall be compiled annually
  5    and made available for public inspection. All costs incurred in  the  prepara-
  6    tion  of said opinions shall be borne by the office of the attorney general. A
  7    copy of the opinions shall be furnished to the supreme court and to the  state
  8    librarian.
  9        (7.)  When  required by the public service, to repair to any county in the
 10    state and assist the prosecuting attorney thereof in the discharge of duties.
 11        (8.)  To bid upon and purchase, when necessary, in the name of the  state,
 12    and under the direction of the state controller, any property offered for sale
 13    under execution issued upon judgments in favor of or for the use of the state,
 14    and to enter satisfaction in whole or in part of such judgments as the consid-
 15    eration for such purchases.
 16        (9.)  Whenever the property of a judgment debtor in any judgment mentioned
 17    in  the preceding subdivision has been sold under a prior judgment, or is sub-
 18    ject to any judgment, lien, or encumbrance, taking precedence of the  judgment
 19    in  favor of the state, under the direction of the state controller, to redeem
 20    such property from such prior judgment, lien, or encumbrance; and all sums  of
 21    money necessary for such redemption must, upon the order of the board of exam-
 22    iners, be paid out of any money appropriated for such purposes.
 23        (10.) When  necessary  for  the  collection or enforcement of any judgment
 24    hereinbefore mentioned, to institute and prosecute, in behalf  of  the  state,
 25    such suits or other proceedings as may be necessary to set aside and annul all
 26    conveyances  fraudulently made by such judgment debtors; the cost necessary to
 27    the prosecution must, when allowed by the board of examiners, be paid  out  of
 28    any appropriations for the prosecution of delinquents.
 29        (11.) To  exercise  all  the common law power and authority usually apper-
 30    taining to the office and to discharge the other duties prescribed by law.
 31        (12.) To report to the governor, at the time required by  this  code,  the
 32    condition  of  the affairs of the attorney general's office and of the reports
 33    received from prosecuting attorneys.
 34        (13.) To appoint deputy attorneys general  and  special  deputy  attorneys
 35    general  and  other necessary staff to assist in the performance of the duties
 36    of the office. Such deputies and staff shall be nonclassified employees within
 37    the meaning of section 67-5302, Idaho Code.
 38        (14)  To establish a medicaid fraud control unit pursuant  to  the  provi-
 39    sions  of section 56-226, Idaho Code, and to exercise concurrent investigative
 40    and prosecutorial authority and  responsibility  with  county  prosecutors  to
 41    prosecute  persons  for the violation of the criminal provisions of chapter 2,
 42    title 56, Idaho Code, and for criminal offenses that are not defined  in  said
 43    chapter  2,  title 56, Idaho Code, but that involve or are directly related to
 44    the use of medicaid program funds or services provided  through  the  medicaid
 45    program.

Statement of Purpose / Fiscal Impact


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                       STATEMENT OF PURPOSE

                             RS 16914

This legislation defines and provides for a Medicaid Fraud
Program in the Department of Health and Welfare that is outside
the scope and duties of the Medicaid Fraud Control Unit and
establishes in the Office of the Attorney General an independent
and certified Medicaid Fraud Control Unit as defined and required
in 42 U.S.C. Sections 1320(a)-7b(f)1 and 1396a(61).  This
legislation also outlines the authority and duties of the
Medicaid Fraud Program and the Medicaid Fraud Control Unit.  It
outlines the proper handling of Medicaid fraud referrals between
the Department of Health and Welfare and the Office of the
Attorney General.  It provides to the Office of the Attorney
General and prosecuting attorneys authority to prosecute Medicaid
fraud.  It requires the retention of Medicaid records. 
Obstruction of investigations, incrimination, and criminal
penalties pertaining to Medicaid fraud are defined and set forth. 
The adoption of procedures, collection of overpayments,
employment of necessary personnel, and rulemaking authority are
outlined.


                           FISCAL NOTE

The ongoing costs of creating a separate certified Medicaid Fraud
Unit within the Criminal Division of the Office of the Attorney
General is estimated to be $75,000 from the General Fund and
$675,000 from federal funds.  The federal government will
reimburse the state 90% of the costs for the first three years,
and then in subsequent years will reimburse 75% of the expenses
of a certified unit.  This unit will be comprised of two
attorneys, two investigators, two auditors, a paralegal, and a
legal secretary.  This fiscal note does project any recoveries or
savings due to the deterrent impact of the unit.  The state
portion of any recoveries shall be deposited into the General
Fund.  The state typically receives 30% of any recovered funds.


Contact
Name: Rep. Mathews 
Phone: 208 332-1000
Rep. Denney   Rep. Block       Rep. Hagedorn    Sen. Cameron
Rep. Moyle    Rep. McGeachin   Rep. Bilbao      Sen. Lodge
Rep. Bedke    Rep. Loertscher                   Sen. McGee
Rep. Roberts  Rep. Wood                        
Rep. Bell     Rep. Henbest


STATEMENT OF PURPOSE/FISCAL NOTE                         H 166