SB1353sam001 97TH GENERAL ASSEMBLY

Sen. Jeffrey M. Schoenberg

Filed: 4/7/2011

09700SB1353sam001 LRB097 09784 KTG 53624 a

AMENDMENT TO SENATE BILL 1353

AMENDMENT NO. ______. Amend Senate Bill 1353 by replacing everything after the enacting clause with the following:

"Section 5. The Attorney General Act is amended by adding Section 6.7 as follows:

(15 ILCS 205/6.7 new)

Sec. 6.7. Medicaid Fraud Control Unit.

(a) Transfer of Medicaid Fraud Control Unit.

(1) Transfer. Subject to subsection (b), on the effective date of this amendatory Act of the 97th General Assembly, all functions performed by the Medicaid Fraud Control Unit created in accordance with 42 U.S.C. 1396b, together with all of the powers, duties, rights, and responsibilities of the Medicaid Fraud Control Unit relating to those functions, are transferred from the Department of State Police to the Office of the Attorney General.

The Department of State Police and the Office of the Attorney General shall cooperate to ensure that the transfer of functions is completed as soon as practical.

(2) Effect of transfer. Neither the functions of the Medicaid Fraud Control Unit, nor the powers, duties, rights, and responsibilities relating to those functions, that are transferred from the Department of State Police to the Office of the Attorney General under this Section are affected by this amendatory Act of the 97th General Assembly, except that all such functions, powers, duties, rights, and responsibilities shall be performed or exercised within the Office of the Attorney General on and after the effective date of this amendatory Act of the 97th General Assembly.

(3) Personnel transferred. The status and rights of the employees in the Department of State Police engaged in the performance of functions relating to the Medicaid Fraud Control Unit shall not be affected by the transfer of those functions from the Department of State Police to the Office of the Attorney General under this Section. The rights of those employees as derived from the State of Illinois and its agencies under the Personnel Code, the applicable collective bargaining agreements, or any pension, retirement, or annuity plan shall not be affected by this Section. Personnel employed by the Department of State Police who are affected by this Section shall continue their service within the Office of the Attorney General.

(4) Books and records transferred. All books, records, papers, documents, contracts, and pending business pertaining to the Medicaid Fraud Control Unit, including but not limited to material in electronic or magnetic format, shall be transferred to the Office of the Attorney General. The transfer of that information shall not, however, violate any applicable confidentiality constraints.

(5) Unexpended moneys transferred. All unexpended appropriation balances and other funds otherwise available to the Department of State Police for use in connection with the Medicaid Fraud Control Unit shall be transferred and made available to the Office of the Attorney General for use in connection with the Medicaid Fraud Control Unit.

(6) Exercise of transferred powers; savings provisions. The powers, duties, rights, and responsibilities relating to the Medicaid Fraud Control Unit transferred from the Department of State Police to the Office of the Attorney General under this Section are vested in and shall be exercised by the Office of the Attorney General. Each act done in exercise of those powers, duties, rights, and responsibilities shall have the same legal effect as if done by the Department of State Police or its divisions, officers, or employees.

(7) Officers and others; duties; penalties. Every employee, agent, or officer of the Office of the Attorney General is subject to the same obligations and duties, and has the same rights, as are prescribed by law in connection with the exercise of any power, duty, right, or responsibility transferred under this Section.

Every employee, agent, or officer of the Office of the Attorney General is subject to the same penalty or penalties, civil or criminal, as are prescribed by law for the same offense by any employee, agent, or officer whose powers, duties, rights, or responsibilities are transferred under this Section.

(8) Reports, notices, or papers. Whenever reports or notices are required to be made or given or papers or documents furnished or served by any person to or upon the Department of State Police in connection with any of the functions relating to the Medicaid Fraud Control Unit, the same shall be made, given, furnished, or served in the same manner to or upon the Office of the Attorney General.

(9) Acts and actions unaffected by transfer. This Section does not affect any act completed, ratified, or canceled, or any right occurring or established, before the effective date of this amendatory Act of the 97th General Assembly in connection with any function transferred under this Section. This Section does not affect any action or proceeding had or commenced before the effective date of this amendatory Act of the 97th General Assembly in an administrative, civil, or criminal cause regarding any function transferred under this Section, but any such action or proceeding may be continued by the Office of the Attorney General.

(10) For the purposes of the Successor Agency Act, the Office of the Attorney General is declared to be the successor agency of the Department of State Police, but only with respect to the functions that are transferred to the Office of the Attorney General under this Section.

(b) Federal approvals or certifications. Notwithstanding any provision of subsection (a), if any federal approvals or certifications are required before effectuating the transfer described in subsection (a), the transfer is not operative until all required federal approvals and certifications have been secured.

Section 10. The Illinois Act on the Aging is amended by changing Section 4.04a as follows:

(20 ILCS 105/4.04a)

Sec. 4.04a. Illinois Long-Term Care Council.

(a) Purpose. The purpose of this Section is to ensure that consumers over the age of 60 residing in facilities licensed or regulated under the Nursing Home Care Act, Skilled Nursing and Intermediate Care Facilities Code, Sheltered Care Facilities Code, and the Illinois Veterans' Homes Code receive high quality long-term care through an effective Illinois Long-Term Care Council.

(b) Maintenance and operation of the Illinois Long-Term Care Council.

(1) The Department shall develop a fair and impartial process for recruiting and receiving nominations for members for the Illinois Long-Term Care Council from the State Long-Term Care Ombudsman, the area agencies on aging, regional ombudsman programs, provider agencies, and other public agencies, using a nomination form provided by the Department.

(2) The Department shall appoint members to the Illinois Long-Term Care Council in a timely manner.

(3) The Department shall consider and act in good faith regarding the Illinois Long-Term Care Council's annual report and its recommendations.

(4) The Director shall appoint to the Illinois Long-Term Care Council at least 18 but not more than 25 members.

(c) Responsibilities of the State Long-Term Care Ombudsman, area agencies on aging, regional long-term care ombudsman programs, and provider agencies. The State Long-Term Care Ombudsman and each area agency on aging, regional long-term care ombudsman program, and provider agency shall solicit names and recommend members to the Department for appointment to the Illinois Long-Term Care Council.

(d) Powers and duties. The Illinois Long-Term Care Council shall do the following:

(1) Make recommendations and comment on issues pertaining to long-term care and the State Long-Term Care Ombudsman Program to the Department.

(2) Advise the Department on matters pertaining to the quality of life and quality of care in the continuum of long-term care.

(3) Evaluate, comment on reports regarding, and make recommendations on, the quality of life and quality of care in long-term care facilities and on the duties and responsibilities of the State Long-Term Care Ombudsman Program.

(4) Prepare and circulate an annual report to the Governor, the General Assembly, and other interested parties concerning the duties and accomplishments of the Illinois Long-Term Care Council and all other related matters pertaining to long-term care and the protection of residents' rights.

(5) Provide an opportunity for public input at each scheduled meeting.

(6) Make recommendations to the Director, upon his or her request, as to individuals who are capable of serving as the State Long-Term Care Ombudsman and who should make appropriate application for that position should it become vacant.

(e) Composition and operation. The Illinois Long-Term Care Council shall be composed of at least 18 but not more than 25 members concerned about the quality of life in long-term care facilities and protecting the rights of residents, including members from long-term care facilities. The State Long-Term Care Ombudsman shall be a permanent member of the Long-Term Care Council. Members shall be appointed for a 4-year term with initial appointments staggered with 2-year, 3-year, and 4-year terms. A lottery will determine the terms of office for the members of the first term. Members may be reappointed to a term but no member may be reappointed to more than 2 consecutive terms. The Illinois Long-Term Care Council shall meet a minimum of 3 times per calendar year.

(f) Member requirements. All members shall be individuals who have demonstrated concern about the quality of life in long-term care facilities. A minimum of 3 members must be current or former residents of long-term care facilities or the family member of a current or former resident of a long-term care facility. A minimum of 2 members shall represent current or former long-term care facility resident councils or family councils. A minimum of 4 members shall be selected from recommendations by organizations whose members consist of long-term care facilities. A representative of long-term care facility employees must also be included as a member. A minimum of 2 members shall be selected from recommendations of membership-based senior advocacy groups or consumer organizations that engage solely in legal representation on behalf of residents and immediate families. There shall be non-voting State agency members on the Long-Term Care Council from the following agencies: (i) the Department of Veterans' Affairs; (ii) the Department of Human Services; (iii) the Department of Public Health; (iv) the Department on Aging; (v) the Department of Healthcare and Family Services; (vi) the Illinois State Police Medicaid Fraud Control Unit; and (vii) others as appropriate.

(Source: P.A. 95-331, eff. 8-21-07.)

Section 15. The Illinois Public Aid Code is amended by changing Section 8A-7 and by changing and renumbering Section 12-4.40, as added by Public Act 96-1346, as follows:

(305 ILCS 5/8A-7) (from Ch. 23, par. 8A-7)

Sec. 8A-7. Civil Remedies. (a) A person who receives financial aid by means of a false statement, willful misrepresentation or by his failure to notify the county department or local governmental unit, as the case may be, of a change in his status as required by Sections 11-18 and 11-19, for the purpose of preventing the denial, cancellation or suspension of his grant, or a variation in the amount thereof, or by other fraudulent device, or a person who knowingly aids or abets any person in obtaining financial aid for which he is not eligible, shall be answerable to the county department or the local governmental unit, as the case may be, for refunding the entire amount of aid received. If the refund is not made, it shall be recoverable in a civil action from the person who received the aid, or from anyone who willfully aided such person to obtain the aid. If an act which would be unlawful under Section 8A-2 is proven, the court may as a penalty assess an additional sum of money, not to exceed the entire amount of aid provided, against the recipient or against any person who willfully aided the recipient. If assessed, the penalty shall be included in any judgment entered for the aid received, and paid to the county department or the local governmental unit, as the case may be. Upon entry of the judgment a lien shall attach to all property and assets of such person until the judgment is satisfied.

(b) Any person, firm, corporation, association, agency, institution or other legal entity, other than an individual recipient, that willfully, by means of a false statement or representation, or by concealment of any material fact or by other fraudulent scheme or device on behalf of himself or others, obtains or attempts to obtain benefits or payments under this Code to which he or it is not entitled, or in a greater amount than that to which he or it is entitled, shall be liable for repayment of any excess benefits or payments received and, in addition to any other penalties provided by law, civil penalties consisting of (1) the interest on the amount of excess benefits or payments at the maximum legal rate in effect on the date the payment was made to such person, firm, corporation, association, agency, institution or other legal entity for the period from the date upon which payment was made to the date upon which repayment is made to the State, (2) an amount not to exceed 3 times the amount of such excess benefits or payments, and (3) the sum of $2,000 for each excessive claim for benefits or payments. Upon entry of a judgment for repayment of any excess benefits or payments, or for any civil penalties assessed by the court, a lien shall attach to all property and assets of such person, firm, corporation, association, agency, institution or other legal entity until the judgment is satisfied.

(c) Civil recoveries provided for in this Section may be recoverable in court proceedings initiated by the Attorney General or, in actions involving a local governmental unit, by the State's Attorney.

(d) Any person who commits the offense of vendor fraud or recipient fraud as defined in Section 8A-2 and Section 8A-3 of this Article shall forfeit, according to the provisions of this subsection, any monies, profits or proceeds, and any interest or property which the sentencing court determines he has acquired or maintained, directly or indirectly, in whole or in part as a result of such offense. Such person shall also forfeit any interest in, securities of, claim against, or contractual right of any kind which affords him a source of influence over, any enterprise which he has established, operated, controlled, conducted, or participated in conducting, where his relationship to or connection with any such thing or activity directly or indirectly, in whole or in part, is traceable to any thing or benefit which he has obtained or acquired through vendor fraud or recipient fraud.

Proceedings instituted pursuant to this subsection shall be subject to and conducted in accordance with the following procedures:

(1) The sentencing court shall, upon petition by the Attorney General or State's Attorney at any time following sentencing, conduct a hearing to determine whether any property or property interest is subject to forfeiture under this subsection. At the forfeiture hearing the People shall have the burden of establishing, by a preponderance of the evidence, that the property or property interests are subject to such forfeiture.

(2) In any action brought by the People of the State of Illinois under this Section, in which any restraining order, injunction or prohibition or any other action in connection with any property or interest subject to forfeiture under this subsection is sought, the circuit court presiding over the trial of the person charged with recipient fraud or vendor fraud as defined in Sections 8A-2 or 8A-3 of this Article shall first determine whether there is probable cause to believe that the person so charged has committed the offense of recipient fraud or vendor fraud and whether the property or interest is subject to forfeiture under this subsection. To make such a determination, prior to entering any such order, the court shall conduct a hearing without a jury, at which the People shall establish that there is (i) probable cause that the person so charged has committed the offense of recipient fraud or vendor fraud and (ii) probable cause that any property or interest may be subject to forfeiture pursuant to this subsection. Such hearing may be conducted simultaneously with a preliminary hearing, if the prosecution is commenced by information or complaint, or by motion of the People at any stage in the proceedings. The court may accept a finding of probable cause at a preliminary hearing following the filing of an information charging the offense of recipient fraud or vendor fraud as defined in Sections 8A-2 or 8A-3 or the return of an indictment by a grand jury charging the offense of recipient fraud or vendor fraud as defined in Sections 8A-2 or 8A-3 of this Article as sufficient evidence of probable cause as provided in item (i) above. Upon such a finding, the circuit court shall enter such restraining order, injunction or prohibition, or shall take such other action in connection with any such property or other interest subject to forfeiture under this Act as is necessary to insure that such property is not removed from the jurisdiction of the court, concealed, destroyed or otherwise disposed of by the owner of that property or interest prior to a forfeiture hearing under this subsection. The Attorney General or State's Attorney shall file a certified copy of such restraining order, injunction or other prohibition with the recorder of deeds or registrar of titles of each county where any such property of the defendant may be located. No such injunction, restraining order or other prohibition shall affect the rights of any bonafide purchaser, mortgagee, judgement creditor or other lien holder arising prior to the date of such filing. The court may, at any time, upon verified petition by the defendant, conduct a hearing to determine whether all or portions of any such property or interest which the court previously determined to be subject to forfeiture or subject to any restraining order, injunction, or prohibition or other action, should be released. The court may in its discretion release such property to the defendant for good cause shown.

(3) Upon conviction of a person under this Article, the court shall authorize the Director of the Illinois Department of State Police to seize all property or other interest declared forfeited under this subsection upon such terms and conditions as the court shall deem proper.

(4) The Director of the Illinois Department of State Police is authorized to sell all property forfeited and seized pursuant to this subsection, unless such property is required by law to be destroyed or is harmful to the public. After the deduction of all requisite expenses of administration and sale, the court shall order the Director to distribute to the Illinois Department an amount from the proceeds of the forfeited property, or monies forfeited or seized, which will satisfy any unsatisfied court order of restitution entered pursuant to a conviction under this Article. If the proceeds are less than the amount necessary to satisfy the order of restitution, the Director shall distribute to the Illinois Department the entire amount of the remaining proceeds. The Director shall distribute any remaining proceeds of such sale, along with any monies forfeited or seized, in accordance with the following schedules:

(a) 25% shall be distributed to the unit of local government whose officers or employees conducted the investigation into recipient fraud or vendor fraud and caused the arrest or arrests and prosecution leading to the forfeiture. Amounts distributed to units of local government shall be used solely for enforcement matters relating to detection, investigation or prosecution of recipient fraud or vendor fraud as defined in Section 8A-2 or 8A-3 of this Article. Where the investigation, arrest or arrests leading to the prosecution and forfeiture is undertaken solely by the Illinois Department of State Police, the portion provided hereunder shall be paid into the Medicaid Fraud and Abuse Prevention Fund, which is hereby created in the State treasury. Monies from this fund shall be used by the Department of State Police for the furtherance of enforcement matters relating to detection, investigation or prosecution of recipient fraud or vendor fraud. Monies directed to this fund shall be used in addition to, and not as a substitute for, funds annually appropriated to the Department of State Police for medicaid fraud enforcement.

(b) 25% shall be distributed to the county in which the prosecution and petition for forfeiture resulting in the forfeiture was instituted, and deposited in a special fund in the county treasury and appropriated to the State's Attorney for use solely in enforcement matters relating to detection, investigation or prosecution of recipient fraud or vendor fraud; however, if the Attorney General brought the prosecution resulting in the forfeiture, the portion provided hereunder shall be paid into the Medicaid Fraud and Abuse Prevention Fund, to be used by the Medicaid Fraud Control Unit of the Illinois Department of State Police for enforcement matters relating to detection, investigation or prosecution of recipient fraud or vendor fraud. Where the Attorney General and a State's Attorney have jointly participated in any portion of the proceedings, 12.5% shall be distributed to the county in which the prosecution resulting in the forfeiture was instituted, and used as specified herein, and 12.5% shall be paid into the Medicaid Fraud and Abuse Prevention Fund, and used as specified herein.

(c) 50% shall be transmitted to the State Treasurer for deposit in the General Revenue Fund.

(Source: P.A. 85-707.)

(305 ILCS 5/12-4.41)

Sec. 12-4.41 12-4.40. Public Benefits Fraud Protection Task Force.

(a) Purpose. The purpose of the Public Benefits Fraud Protection Task Force is to conduct a thorough review of the nature of public assistance fraud in the State of Illinois; to ascertain the feasibility of implementing a mechanism to determine the pervasiveness and frequency of public assistance fraud; to calculate the detriment of public assistance fraud to the financial status and socio-economic status of public aid recipients specifically and Illinois taxpayers generally; and to determine if more stringent penalties or compassionate procedures are necessary.

(b) Definitions. As used in this Section:

"Task Force" means the Public Benefits Fraud Protection Task Force.

"Public assistance" or "public aid" includes, without limitation, Medicaid, TANF, the Illinois LINK Program, General Assistance, Transitional Assistance, the Supplemental Nutrition Assistance Program, and the Child Care Assistance Program.

(c) The Public Benefits Fraud Protection Task Force. The Public Benefits Fraud Protection Task Force is created. The Task Force shall be composed of 17 members appointed as follows:

(1) One member of the Illinois Senate appointed by the President of the Senate, who shall be co-chair to the Task Force;

(2) One member of the Illinois Senate appointed by the Senate Minority Leader;

(3) One member of the Illinois House of Representatives appointed by the Speaker of the House of Representatives, who shall be co-chair to the Task Force;

(4) One member of the Illinois House of Representatives appointed by the House Minority Leader;

(5) The following persons, or their designees: the Director of Public Health, the Director of Healthcare and Family Services, and the Secretary of Human Services;

(6) The Director of the Illinois Department on Aging, or his or her designee;

(7) The Executive Inspector General appointed by the Governor, or his or her designee;

(8) The Inspector General of the Illinois Department of Human Services, or his or her designee;

(9) A representative from the Illinois State Police Medicaid Fraud Control Unit;

(10) Three persons, who are not currently employed by a State agency, appointed by the Secretary of Human Services, one of whom shall be a person with professional experience in child care issues, one of whom shall be a person with knowledge and experience in legal aid services, and one of whom shall be a person with knowledge and experience in poverty law;

(11) The Attorney General, or his or her designee;

(12) A representative of a union representing front line State employees who administer public benefits programs; and

(13) A representative of a statewide business association.

(d) Compensation and qualifications. Members shall serve without compensation and shall be adults and residents of Illinois.

(e) Appointments. Appointments shall be made 90 days from the effective date of this amendatory Act of the 96th General Assembly.

(f) Hearings. The Task Force shall solicit comments from stakeholders and hold public hearings before filing any report required by this Section. At the public hearings, the Task Force shall allow interested persons to present their views and comments. The Task Force shall submit all reports required by this Section to the Governor and the General Assembly. In addition to the reports required by this Section, the Task Force may provide, at its discretion, interim reports and recommendations. The Department of Human Services shall provide administrative support to the Task Force.

(g) Task Force duties. The Task Force shall gather information and make recommendations relating to at least the following topics in relation to public assistance fraud:

(1) Reviews of provider billing of public aid claims.

(2) Reviews of recipient utilization of public aid.

(3) Protocols for investigating recipient public aid fraud.

(4) Protocols for investigating provider public aid fraud.

(5) Reporting of alleged fraud by private citizens through qui tam actions.

(6) Examination of current fraud prevention measures which may hinder legitimate aid claims.

(7) Coordination between relevant agencies in fraud investigation.

(8) Financial audit of the current costs borne by aid recipients and Illinois government through fraud.

(9) Examination of enhanced penalties for fraudulent recipients and providers.

(10) Enhanced whistleblower protections.

(11) Voluntary assistance from businesses and community groups in efforts to curb fraud.

(h) Task Force recommendations. Any of the findings, recommendations, public postings, and other relevant information regarding the Task Force shall be made available on the Department of Human Services' website.

(i) Reporting requirements. The Task Force shall submit findings and recommendations to the Governor and the General Assembly by December 31, 2011, including any necessary implementing legislation, and recommendations for changes to policies, rules, or procedures that are not incorporated in the implementing legislation.

(j) Dissolution of Task Force. The Task Force shall be dissolved 90 days after its report has been submitted to the Governor's Office and the General Assembly.

(Source: P.A. 96-1346, eff. 1-1-11; revised 9-9-10.)

Section 99. Effective date. This Act takes effect January 1, 2012.".