GA Code § 49-4-146.1 (2021)
2021 Georgia Code|Title 49 - Social Services|Chapter 4 - Public Assistance|Article 7 - Medical Assistance Generally|§ 49-4-146.1. Unlawful Acts; Violations and Penalties; Recovery of Excess Amounts; Termination and Reinstatement of Providers; Duty of Department to Identify and Investigate Violations; Notifications; Authorization to Obtain Income Eligibility Verification

  As used in this Code section, the term:   "Agent" means any person who has been delegated the authority to obligate or act on behalf of a provider.   "Convicted" means that a judgment of conviction has been entered by any federal, state, or other court, regardless of whether an appeal from that judgment is pending.   "Indirect ownership interest" means any ownership interest in an entity that has an ownership interest in the provider entity. The term includes an ownership interest in any entity that has an indirect ownership interest in the provider entity.   "Managing employee" means a general manager, business manager, administrator, director, or other individual who exercises operational or managerial control over, or who directly or indirectly conducts, the day-to-day operation of the institution, organization, or agency.   "Payment" includes a payment or approval for payment, any portion of which is paid by the Georgia Medicaid program, or by a contractor, subcontractor, or agent for the Georgia Medicaid program pursuant to a managed care program operated, funded, or reimbursed by the Georgia Medicaid program.  (5.1) "Peace officer" shall have the same meaning as provided for in subparagraph (A) of paragraph (8) of Code Section 35-8-2.    "Person" means any person, firm, corporation, partnership, or other entity.   "Person with an ownership or control interest" means a person who:   Has ownership interest totaling 5 percent or more in a provider;   Has an indirect ownership interest equal to 5 percent or more in a provider;   Has a combination of direct and indirect ownership interests equal to 5 percent or more in a provider;   Owns an interest of 5 percent or more in any mortgage, deed of trust, note, or other obligation secured by the provider entity if that interest equals at least 5 percent of the value of the property or assets of the provider;   Is an officer or director of a provider that is organized as a corporation; or   Is a partner in a provider entity that is organized as a partnership.     "Provider" means an actual or prospective provider of medical assistance under this chapter. The term "provider" shall also include any managed care organization providing services pursuant to a managed care program operated, funded, or reimbursed by the Georgia Medicaid program.     It shall be unlawful:   For any person or provider to obtain, attempt to obtain, or retain for himself, herself, or any other person any medical assistance or other benefits or payments under this article, or under a managed care program operated, funded, or reimbursed by the Georgia Medicaid program, to which the person or provider is not entitled, or in an amount greater than that to which the person or provider is entitled, when the assistance, benefit, or payment is obtained, attempted to be obtained, or retained, by:   Knowingly and willfully making a false statement or false representation;   Deliberate concealment of any material fact; or   Any fraudulent scheme or device; or     For any person or provider knowingly and willfully to accept medical assistance payments to which he or she is not entitled or in an amount greater than that to which he or she is entitled or knowingly and willfully to falsify any report or document required under this article.     Any person violating paragraph (1) or (2) of subsection (b) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished for each offense by a fine of not more than $10,000.00, or by imprisonment for not less than one year nor more than ten years, or by both such fine and imprisonment. In any prosecution under this Code section, the state has the burden of proving beyond a reasonable doubt that the defendant intentionally committed the acts for which he or she is charged.   In addition to any other penalties provided by law, each person violating subsection (b) of this Code section shall be liable to a civil penalty equal to the greater of (1) three times the amount of any such excess benefit or payment or (2) $1,000.00 for each excessive claim for assistance, benefit, or payment. Additionally, interest on the penalty shall be paid at the rate of 12 percent per annum from the date of payment of any such excessive amount, or from the date of receipt of any claim for an excessive amount when no payment has been made, until the date of payment of such penalty to the department.     Whenever the commissioner proposes to recover an amount provided for in subsection (d) of this Code section, he shall give 30 days' written notice of his intended actions. The notice shall inform the person in violation of subsection (b) of this Code section of his right to a hearing, the method by which he may obtain a hearing, and that he may be represented by an authorized representative, such as legal counsel, relative, friend, or other spokesman, or that he may represent himself.   All hearings held by virtue of this subsection shall be conducted in the same manner as any other contested case within the department and shall be subject to the rules and regulations regarding hearings within the department. As in all contested cases within the department, the person against whom the commissioner is proceeding under this subsection shall have the right to appeal any adverse administrative decision to the superior court of the county of his residence or to the Superior Court of Fulton County once he exhausts all administrative remedies within the department.   If the person against whom the commissioner is proceeding under this subsection fails to request a hearing or fails to exhaust all administrative remedies within the department, then his case shall be treated as an unappealed administrative decision. In any unappealed administrative decision where the aggrieved party fails to request a hearing or fails to exhaust all administrative remedies, the commissioner shall issue an order to the person against whom the commissioner is proceeding, directing payment of any amount found to be due pursuant to subsection (d) of this Code section within ten days after service of the order. Upon failure to comply with the commissioner's order, the commissioner may issue a certificate to the clerk of the superior court of the county of residence of the person who is the subject of the order. A copy of such certificate shall be served upon the person against whom the order was entered. Thereupon, the clerk shall immediately enter upon his record of docketed judgments the name of the person so indebted, that the debt is owed to the state, a designation of the statute under which such amount is found to be due, the amount due, and the date of the certification. Such entry shall have the same force and effect as the entry of a docketed judgment in the superior court. Such entry on the docket by the commissioner shall be without prejudice to the right of the aggrieved party to contest such entry by affidavit of illegality or as otherwise provided by law.     The department may refuse to accept a statement of participation, deny a request for reinstatement, refuse to exercise its option to renew a statement of participation, suspend or withhold those payments arising from fraud or willful misrepresentation under the Medicaid program, or terminate the participation of any provider other than a natural person if that provider or any person with an ownership or control interest or any agent or managing employee of such provider has been:   Convicted of violating paragraph (1) or (2) of subsection (b) of this Code section;   Convicted of committing any other criminal offense related to any program administered under Title XVIII, XIX, or XX of the Social Security Act of 1935, as amended; or   Excluded or suspended from participation in the medicare program for fraud or abuse.  In making a decision pursuant to this subsection, the department shall consider the facts and circumstances of the specific case, including but not limited to the nature and severity of the crime or violation and the extent to which it adversely affected medical assistance recipients and the program.      The department shall refuse to accept a statement of participation, deny a request for reinstatement, refuse to exercise its option to renew a statement of participation, or terminate the participation of any provider who is a natural person if that provider or any agent or managing employee of such provider has been convicted of:   Violating subsection (b) of this Code section; or   Committing any other criminal offense related to any program administered under Title XVIII, XIX, or XX of the Social Security Act of 1935, as amended.     The department shall reinstate a provider whose participation in the medical assistance program was terminated pursuant to subsection (f) or (g) of this Code section if the conviction upon which the termination was based is reversed or vacated or if the decision of the administrative law judge is reversed in accordance with the department's rules and regulations.   It shall be the duty of the department to identify and investigate violations of this article and to turn over to the prosecuting attorney, for prosecution, any information concerning any recipient of medical assistance who violates this article.   As necessary to enforce the provisions of this article, the department or its duly authorized agents may submit to the state revenue commissioner the names of applicants for medical assistance or other benefits or payments provided under this article, as well as the relevant income threshold specified therein. If the department elects to contract with the state revenue commissioner for such purposes, the state revenue commissioner and his or her agents or employees shall notify the department whether or not each submitted applicant's income exceeds the relevant income threshold provided. The department shall pay the state revenue commissioner for all costs incurred by the Department of Revenue pursuant to this subsection. No information shall be provided by the Department of Revenue to the department without an executed cooperative agreement between the two departments. Any tax information secured from the federal government by the Department of Revenue pursuant to express provisions of Section 6103 of the Internal Revenue Code may not be disclosed by the Department of Revenue pursuant to this subsection. Any person receiving any tax information under the authority of this subsection is subject to the provisions of Code Section 48-7-60 and to all penalties provided under Code Section 48-7-61 for unlawful divulging of confidential tax information.     The Attorney General shall have the authority to investigate and prosecute any offenses or criminal cases arising under the provisions of this Code section and to perform any duty that necessarily appertains thereto.   For purposes of investigating offenses or criminal cases arising under the provisions of this Code section, the Attorney General shall have the authority to employ peace officers who shall be authorized to execute all powers of a peace officer.      (c.1) (1)Any person committing abuse shall be liable for a civil monetary penalty equal to two times the amount of any excess benefit or payment. This penalty shall be collected on the same terms as a penalty imposed pursuant to subsection (d) of this Code section, except as to the amount specified in items (1) and (2) of that subsection, but shall not be imposed cumulatively with a penalty under such subsection.   Abuse is defined as a provider knowingly obtaining or attempting to obtain medical assistance or other benefits or payments under this article to which the provider knows he or she is not entitled when the assistance, benefits, or payments are greater than an amount which would be paid in accordance with those provisions of the department's policies and procedures manual which are adopted pursuant to public notice, and the assistance, benefits, or payments directly or indirectly result in unnecessary costs to the medical assistance program. Isolated instances of unintentional errors in billing, coding, and costs reports shall not constitute abuse. Miscoding shall not constitute abuse if there is a good faith basis that the codes used were appropriate under the department's policies and procedures manual and there was no deceptive intent on the part of the provider.   (Ga. L. 1981, p. 962, § 1; Ga. L. 1985, p. 1395, §§ 1, 2; Ga. L. 1994, p. 97, § 49; Ga. L. 1997, p. 679, § 1; Ga. L. 1997, p. 1596, § 1; Ga. L. 1998, p. 128, § 49; Ga. L. 1998, p. 664, § 1; Ga. L. 2006, p. 775, § 2/SB 572; Ga. L. 2007, p. 47, § 49/SB 103; Ga. L. 2009, p. 63, § 1/SB 165; Ga. L. 2020, p. 29, § 3/SB 394.)    The 2020 amendment,  effective July 1, 2020, added paragraph (a)(5.1) and added subsection (k).   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1986, "Title" was substituted for "Titles" in paragraph (f)(2).   U.S. Code.   - Titles XVIII, XIX, and XX of the Social Security Act of 1935, referred to in this Code section, are codified at 42 U.S.C. §§ 1395 et seq., 1396 et seq., 1397 et seq., respectively.   Section 6103 of the Internal Revenue Code, referred to in subsection (j), is codified at 26 U.S.C. § 6103.   Law reviews.   - For article commenting on the enactment of this Code section, see 14 Ga. St. U. L. Rev. 276 (1997).   JUDICIAL DECISIONS   Statute not vague.    - O.C.G.A. § 49-4-146.1(b)(2), as applied, was not unconstitutionally vague as the procedures for which one would not be entitled to payment through the program were listed in the Medicaid manual, which, in conjunction with the statute, provided the defendant with appropriate notice as required by law. Malloy v. State, 293 Ga. 350, 744 S.E.2d 778 (2013). For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003).   Venue for crime of report falsification.    - Crime of violating the Georgia Medical Assistance Act, O.C.G.A. § 49-4-140 et seq., by falsifying reports claiming reimbursement for prescriptions consisted of the act of "falsifying," rather than the act of "submitting" or "sending," and venue was proper in the county in which the reports were falsified, not in the county to which the reports were sent. State v. Barber, 193 Ga. App. 397, 388 S.E.2d 350 (1989).   Venue for Medicaid fraud.    - In a Medicaid fraud case committed by a fraudulent scheme or device under O.C.G.A. § 49-4-146.1(b)(1)(C) of the Georgia Medical Assistance Act, O.C.G.A. § 49-4-140 et seq., pursuant to Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. § 17-2-2(a), venue is proper in any county where an act was committed in furtherance of the fraudulent transaction; defendants committed acts in furtherance of the fraud in counties in which the defendants were tried and convicted and, thus, venue in those counties was proper and the appellate court improperly reversed the defendants' convictions. State v. Kell, 276 Ga. 423, 577 S.E.2d 551 (2003).    Venue was proper in the county in which the defendant was tried for Medicaid fraud because it was the county in which the fraudulent scheme was hatched, acts in furtherance thereof were performed, and payment was received. Kell v. State, 262 Ga. App. 489, 585 S.E.2d 915 (2003).   Aiding and abetting commission of crime.    - Even assuming the defendant could not be considered a "provider," the wide range of activities performed, when combined with the defendant's supervisory role in the medical office, made the defendant a party to the crime of Medicaid fraud. Bullard v. State, 242 Ga. App. 843, 530 S.E.2d 265 (2000).   State's authority to prosecute    - Under O.C.G.A. § 49-4-146.1(c), the state has the authority to prosecute persons who violate § 49-4-146.1(b)(2), prohibiting a Medicaid provider's acceptance of payment to which the provider is not entitled, or falsifying a required report. Bixby v. State, 254 Ga. App. 212, 561 S.E.2d 870 (2002).   Indictment defective for failing to list specific dates.    - Trial court erred in overruling the defendant's special demurrer with regard to portions of the indictment that contended that the Medicaid fraud and theft by taking crimes were committed over a range of 38 months because the specific dates were known to the state and the indictment should have listed those dates due to the number of alleged acts. Cole v. State, 334 Ga. App. 752, 780 S.E.2d 406 (2015).   Fine for Medicaid fraud deemed proper.    - Defendant was properly fined $50,000 as a condition of defendant's 10 years' probation for Medicaid fraud because, although the maximum statutory fine for the crime was $10,000, the trial court could impose a fine up to $100,000 as a probation condition pursuant to O.C.G.A. § 17-10-8. Kell v. State, 262 Ga. App. 489, 585 S.E.2d 915 (2003).   Jury instructions.    - In defendant's trial for Medicaid fraud in violation of O.C.G.A. § 49-4-146.1(b)(1), the trial court did not err in reading the entire statute to the jury, although the defendant was only charged with fraud by engaging in a fraudulent scheme and device, because the indictment was read to the jury and sent out with the jury, and the trial court noted that the jury was limited to convicting the defendant if the defendant acted as charged. Wright v. State, 327 Ga. App. 451, 757 S.E.2d 890 (2014).   RESEARCH REFERENCES   Am. Jur. 2d.   - 37 Am. Jur. 2d, Fraud and Deceit, § 1 et seq.   C.J.S.   - 37 C.J.S., Fraud, § 1 et seq.   ALR.   - Criminal prosecution or disciplinary action against medical practitioner for fraud in connection with claims under medicaid, medicare, or similar welfare program for providing medical service, 50 A.L.R.3d 549; 70 A.L.R.4th 132.   Imposition of civil penalties, under state statute, upon medical practitioner for fraud in connection with claims under medicaid, medicare, or similar welfare programs for providing medical services, 32 A.L.R.4th 671.   Filing of false insurance claims for medical services as ground for disciplinary action against dentist, physician, or other medical practitioner, 70 A.L.R.4th 132.   State criminal prosecution against medical practitioner for fraud in connection with claims under Medicaid, Medicare, or similar welfare program for providing medical services, 79 A.L.R.6th 125.