Code of Virginia

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Code of Virginia
Title 32.1. Health
Chapter 9. Regulation of Medical Assistance
10/17/2021

Article 1. In General.

§ 32.1-310. Declaration of purpose; authority to audit records; authority to review complaints of abuse or neglect.

The General Assembly finds and declares it to be in the public interest and for the protection of the health and welfare of the residents of the Commonwealth that a proper regulatory and inspection program be instituted in connection with the providing of medical, dental and other health services to recipients of medical assistance. In order to effectively accomplish such purpose and to assure that the recipient receives such services as are paid for by the Commonwealth, the acceptance by the recipient of such services and the acceptance by practitioners of reimbursement for performing such services shall authorize the Attorney General or his authorized representative to inspect and audit all records in connection with the providing of such services.

The General Assembly further finds and declares it to be in the public interest and for the protection of the health and welfare of the residents of the Commonwealth that, in conducting such regulatory and inspection program, the Attorney General or his authorized representatives shall review complaints alleging abuse or neglect of persons in the care or custody of others who receive payments for providing health care services under the state plan for medical assistance.

1981, c. 255; 1982, c. 41; 2011, cc. 110, 175.

§ 32.1-311. Repealed.

Repealed by Acts 1982, c. 41.

§ 32.1-312. Fraudulently obtaining excess or attempting to obtain excess benefits or payments; penalty.

A. No person, agency or institution, but not including an individual medical assistance recipient of health care, on behalf of himself or others, whether under a contract or otherwise, shall obtain or attempt to obtain benefits or payments where the Commonwealth directly or indirectly provides any portion of the benefits or payments pursuant to the Plan for Medical Assistance and any amendments thereto as provided for in § 32.1-325, hereafter referred to as "medical assistance" in a greater amount than that to which entitled by:

1. Knowingly and willfully making or causing to be made any false statement or false representation of material fact;

2. Knowingly and willfully concealing or causing to be concealed any material facts; or

3. Knowingly and willfully engaging in any fraudulent scheme or device, including, but not limited to, submitting a claim for services, drugs, supplies or equipment that were unfurnished or were of a lower quality, or a substitution or misrepresentation of items billed.

B. Any person, agency or institution knowingly and willfully violating any of the provisions of subsection A shall be (i) liable for repayment of any excess benefits or payments received, plus interest on the amount of the excess benefits or payments at the rate of 1.5 percent each month for the period from the date upon which payment was made to the date upon which repayment is made to the Commonwealth and (ii) in addition to any other penalties provided by law, subject to civil penalties. The state Attorney General may petition the circuit court in the jurisdiction of the alleged offense, to seek an order assessing civil penalties in an amount not to exceed three times the amount of such excess benefits or payments. Such civil penalties shall not apply to any acts or omissions occurring prior to the effective date of this law.

C. A criminal action need not be brought against a person for that person to be civilly liable under this section.

D. Civil penalties shall be deposited in the general fund of the state treasury upon their receipt.

E. A civil action under this section shall be brought (i) within six years of the date on which the violation was committed, or (ii) within three years of the date when an official of the Commonwealth charged with the responsibility to act in the circumstances discovered or reasonably should have discovered the facts material to the cause of action. However, in no event shall the limitations period extend more than 10 years from the date on which the violation was committed.

1981, c. 255; 1984, c. 781; 2007, c. 569; 2010, c. 305.

§ 32.1-313. Liability for excess benefits or payments obtained without intent to violate chapter.

A. Any person, agency or institution, but not including an individual medical assistance recipient of health care, that, without intent to violate this chapter, whether under contract or otherwise, obtains benefits or payments where the Commonwealth directly or indirectly provides any portion of the benefits or payments under medical assistance to which such person, agency or institution is not entitled, or in a greater amount than that to which entitled, shall be liable for (i) any excess benefits or payments received, and (ii) interest on the amount of the excess benefits or payments at the judgment rate as defined in § 6.2-302 from the date upon which such person, agency, or institution knew or reasonably should have known that it had received excess benefits or payments to the date upon which repayment is made to the Commonwealth. No person, agency or institution shall be liable for payment of interest, however, when excess benefits or payments were obtained as a result of errors made solely by the Department of Medical Assistance Services. Whenever a penalty or interest is due under this section or § 32.1-312, such penalty or interest shall not be reimbursable by the Commonwealth as an allowable cost under any of the provisions of this chapter.

B. A civil action under this section shall be brought (i) within six years of the date on which the violation was committed, or (ii) within three years of the date when an official of the Commonwealth charged with the responsibility to act in the circumstances discovered or reasonably should have discovered the facts material to the cause of action. However, in no event shall the limitations period extend more than 10 years from the date on which the violation was committed.

1981, c. 255; 1986, c. 551; 2007, c. 569.

§ 32.1-314. False statement or representation in applications for payment or for use in determining rights to payment; concealment of facts; penalty.

A. Any person who engages in the following activities shall be guilty of a felony punishable by a term of imprisonment of not less than one nor more than 20 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and, in addition to such imprisonment or confinement, may be fined an amount not to exceed $25,000:

1. Knowingly and willfully making or causing to be made any false statement or representation of a material fact in any application for any payment under medical assistance;

2. At any time knowingly and willfully making or causing to be made any false statement or representation of a material fact for use in determining rights to such payment, or knowingly and willfully falsifying, concealing or covering up by any trick, scheme or device a material fact, causing a material fact to be falsified, concealed, or covered up in such a manner in connection with such application or payment; or

3. When having knowledge of the occurrence of any event affecting (i) the initial or continued right to any payment or (ii) the initial or continued right to any such payment of any other individual in whose behalf he has applied for or is receiving such payments, willfully concealing or failing to disclose such event, causing such concealment or failure to disclose such an event with an intent fraudulently to secure such payment either in a greater amount or quantity than is due or when no such payment is authorized.

B. Upon conviction for any violation of subsection A, the court shall order restitution to be made to the Department of Medical Assistance Services for any loss caused by the violation.

C. The Director of the Department of Medical Assistance Services may terminate or deny a contract to a provider for any violation of this section pursuant to § 32.1-325.

D. Venue for the trial of any person charged with an offense under this section shall be the county or city in which (i) any act was performed in furtherance of the offense or (ii) the person charged with the offense resided at the time of the offense.

1981, c. 255; 1986, c. 551; 1995, c. 491; 2010, c. 305; 2011, cc. 444, 479; 2015, c. 537.

§ 32.1-315. Solicitation or receipt of remuneration for certain services; offer or payment of remuneration for inducement of such services; penalty.

A. A person shall be guilty of a Class 6 felony and, in addition, may be fined an amount not to exceed $25,000, if he knowingly and willfully solicits or receives any remuneration, including any kickback, bribe or rebate, directly or indirectly, overtly or covertly, in cash or in-kind, or causes such remuneration to be solicited or received:

1. In return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under medical assistance; or

2. In return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing or ordering any goods, facility, service or item for which payment may be made in whole or in part under medical assistance.

B. A person shall be guilty of a Class 6 felony and, in addition, may be fined an amount not to exceed $25,000, if he knowingly and willfully offers or pays any remuneration, including any kickback, bribe, or rebate, directly or indirectly, overtly or covertly, in cash or in-kind to any person to induce such person, or causes such remuneration to be offered or paid:

1. To refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made, in whole or in part, under medical assistance; or

2. To purchase, lease, order, or arrange for or recommend purchasing, leasing or ordering any goods, facility, service or item for which payment may be made in whole or in part under medical assistance.

C. Subsections A and B shall not apply to:

1. A discount or other reduction in price obtained by a provider of services or other person under medical assistance, if the reduction in price is properly disclosed and appropriately reflected in the cost claimed or charges made by the provider or other person under medical assistance;

2. Any reasonable compensation paid by an employer to an employee who has a bona fide employment relationship with such employer, for employment in the provision of covered items or services;

3. An agreement by health care providers for the group purchase of equipment, goods, services, or supplies which results in fees paid to an agent of the providers, when such agreement has been presented to and authorized by the Department of Medical Assistance Services on the basis that the agreement will reduce the costs of providers of institutional services; and

4. Any remuneration, payment, business arrangement or payment practice that is not prohibited by 42 U.S.C. § 1320a-7b (b) or by any regulations adopted pursuant thereto.

D. The Director of the Department of Medical Assistance Services may terminate or deny a contract to a provider for any violation of this section pursuant to § 32.1-325.

1981, c. 255; 1986, c. 551; 2003, c. 312; 2010, c. 305.

§ 32.1-316. False statement or representation as to conditions or operations of institution or facility; penalty.

Any person who knowingly, willfully, and fraudulently makes or causes to be made, or induces or seeks to induce the making of, any false statement or representation of a material fact with respect to the conditions or operations of any institution or facility in order that such institution or facility may qualify, either upon initial certification or upon recertification, as a hospital, skilled nursing facility, intermediate care facility, or home care organization shall be guilty of a Class 6 felony. In addition thereto, a fine may be imposed in an amount not to exceed $5,000. The Director of the Department of Medical Assistance Services may terminate or deny a contract to a provider for any violation of this section pursuant to § 32.1-325.

1981, c. 255; 1991, c. 695; 2010, c. 305.

§ 32.1-317. Collecting excess payment for services; charging, soliciting, accepting or receiving certain consideration as precondition for admittance to facility or requirement for continued stay; penalty.

When the cost of services provided in a facility or by an individual to a patient is paid for, in whole or in part, under medical assistance, any person who:

1. Knowingly and willfully collects or causes to be collected from a patient for any service provided under medical assistance, money or other consideration at a rate in excess of entitlements established by the Department of Medical Assistance Services; or

2. Knowingly and willfully charges, solicits, accepts or receives, or causes to be charged, solicited, accepted, or received any gift, money, donation or other consideration, other than a charitable, religious or philanthropic contribution from an organization or from a person unrelated to the patient, in addition to any amount otherwise required to be paid under medical assistance:

a. As a precondition of admitting a patient to a hospital, skilled nursing facility or intermediate care facility; or

b. As a requirement for the patient's continued stay in such facility;

shall be guilty of a Class 6 felony. In addition thereto, a fine may be imposed in an amount not to exceed $25,000. The Director of the Department of Medical Assistance Services may terminate or deny a contract to a provider for any violation of this section pursuant to § 32.1-325.

1981, c. 255; 1985, c. 153; 2010, c. 305.

§ 32.1-318. Knowing failure to deposit, transfer or maintain patient trust funds in separate account; penalty.

A. Any person having any patient trust funds in his possession, custody or control, who, knowing that he is violating any statute or regulation, deliberately fails to deposit, transfer or maintain such funds in a separate, designated, trust bank account as required by such statute or regulation shall be guilty of a Class 1 misdemeanor.

B. "Patient trust funds" are funds received by any health care facility which belong to patients and are required by any state or federal statute or regulation to be kept in a separate trust bank account for the benefit of such patients.

C. This section shall not be construed to prevent a prosecution pursuant to Chapter 5 (§ 18.2-77 et seq.) of Title 18.2.

1981, c. 255.

§ 32.1-319. Written verification of application, statement or form; penalty for false or misleading information.

The State Board of Medical Assistance Services may require in its Plan for Medical Assistance that any application, statement, or form filled out by suppliers of medical care under medical assistance shall contain or be verified by a written statement that it is made under the penalties of perjury and such declaration shall be in lieu of any oath otherwise required, and each such paper shall in such event so state. Any person who knowingly and willfully makes or subscribes any such papers or forms containing any false or misleading information shall be guilty of a Class 4 misdemeanor.

1981, c. 255; 1984, c. 781.

§ 32.1-319.1. Department to establish pilot program to use data analytics to mitigate risk of improper payments.

A. The Department shall conduct a pilot program to develop and implement means to mitigate the risk of improper payments to providers of services furnished under the state plan for medical assistance and all applicable waivers. The pilot program shall include the use of predictive modeling, provider profiling, trend analysis, and other analytics to identify providers with a high likelihood of fraud, abuse, or error and prevent payments on potentially fraudulent or erroneous claims from being made until such claims have been validated.

B. The Department may enter into a contract or agreement with a vendor for the operation of the pilot program to mitigate the risk of improper payments to providers of services furnished under the state plan for medical assistance and all applicable waivers required by this section. However, selection of a vendor shall be dependent on the demonstration of a proof of concept, prior to entering into a contract or agreement.

2017, c. 750; 2019, c. 422.

§ 32.1-320. Duties of Attorney General; medical services providers audit and investigation unit.

A. There shall be established within the Office of the Attorney General a unit to audit and investigate providers of services furnished under the State Medical Assistance Plan. The Department of Medical Assistance Services shall cooperate with the Office of the Attorney General in conducting such audits and investigations and shall provide such information for these purposes as may be requested by the Attorney General or his authorized representative.

B. The Attorney General or his authorized representative shall have the authority to:

1. Conduct audits and investigations of providers of medical and other services furnished under medical assistance. Such investigations shall include investigation of complaints alleging abuse or neglect of persons in the care or custody of others who receive payments for providing health care services under the state plan for medical assistance, regardless of whether the patient who is the subject of the complaint is a recipient of medical assistance. The relevant board within the Department of Health Professions shall serve in an advisory capacity to the Attorney General in the conduct of audits or investigations of health care providers licensed by the respective regulatory boards. In the conduct of such audits or investigations, the Attorney General may examine (i) those records or portions thereof, including patient records, for which services were rendered by a health care provider and reimbursed by the Department of Medical Assistance Services under the Plan for Medical Assistance, and (ii) in cases involving a complaint alleging abuse or neglect of a person in the care or custody of others who receive payments for medical assistance, those records or portions thereof, including patient records, that are relevant to the investigation of the complaint, notwithstanding the provisions of Chapter 38 (§ 2.2-3800 et seq.) of Title 2.2 or of any other statute which may make or purport to make such records privileged or confidential. No original patient records shall be removed from the premises of the health care provider, except in accordance with Rule 4:9 of the Rules of the Supreme Court of Virginia. The disclosure of any records or information by the Attorney General is prohibited, unless such disclosure is directly connected to the official purpose for which the records or information was obtained. The disclosure of patient information as required under this section shall not subject any physician or other health services provider to any liability for breach of any confidential relationship between the provider and the patient, but no evidence resulting from such disclosure may be used in any civil, administrative or criminal proceeding against the patient unless a waiver of the applicable evidentiary privilege is obtained. The Attorney General shall cause all copies of patient medical records in his possession or that of his designee to be destroyed upon completion of the audit, investigation or proceedings, including appeals;

2. Issue subpoenas, propound interrogatories, compel the attendance of witnesses, administer oaths, certify to official acts, take depositions within and without the Commonwealth as now provided by law, and compel the production of pertinent books, payrolls, accounts, papers, records, documents and testimony relevant to such investigation. If a person in attendance before the Attorney General or his authorized representative refuses, without reasonable cause, to be examined or to answer a legal and pertinent question, or to produce a book or paper or other evidence when ordered to do so by the Attorney General or his authorized representative, the Attorney General or his authorized representative may apply to the judge of the circuit court of the jurisdiction where such person is in attendance, upon affidavit, for an order returnable in not less than two nor more than five days, directing such person to show cause why he should not produce such records. Upon the hearing of such order, if the court shall determine that such person, without reasonable cause, has refused to be examined or to answer a legal or pertinent question, or to produce a book or paper which he was ordered to bring or produce, he may forthwith assess all costs and reasonable attorney fees against such person. If the motion for an order is granted and the person thereafter fails to comply with the order, the court may make such orders as are provided for in the Rules of the Supreme Court of Virginia. Subpoenas shall be served and witness fees and mileage paid as allowed in civil cases in the circuit courts of this Commonwealth. Subpoenas issued under this section are expressly excluded and excepted from the provisions of subsection H of § 32.1-127.1:03. All records, information, reports, documents, memoranda, and communications created or developed during the course of a civil investigation under this section or pursuant to § 32.1-312 shall be considered sensitive and confidential and may be considered attorney work product or privileged investigative files.

1981, c. 255; 1982, c. 41; 1984, c. 781; 1986, c. 551; 2011, cc. 110, 175; 2012, c. 479; 2013, c. 538.

§ 32.1-321. Prosecution of cases.

The State Attorney General shall refer cases for prosecution in accordance with the provisions of this chapter to the attorney for the Commonwealth in the city or county where the offense occurred. The attorney for the Commonwealth shall obtain the assistance of the office of the Attorney General in the conduct of litigation arising under this chapter and shall be considered the authorized representative of the Attorney General for the purposes of this chapter.

1981, c. 255.

§ 32.1-321.01. Exemptions from disclosure.

Records or information provided to the Office of the Attorney General pursuant to this article shall be exempt from disclosure pursuant to § 2.2-3705.5.

2011, cc. 110, 175, 535.