SB245: Bill Text

LRB-1949/2

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2013 - 2014 LEGISLATURE

2013 Senate BILL 245

August 7, 2013 - Introduced by Senators Darling, Gudex, Grothman, Kedzie, Lazich, Leibham and Olsen, cosponsored by Representatives Nygren, Krug, Knodl, Endsley, Jacque, Kaufert, Kerkman, Kestell, Kleefisch, Nass, J. Ott, Pridemore, Sanfelippo, Schraa and Strachota. Referred to Committee on Health and Human Services.

SB245,2,3 An Act to repeal 49.141 (7) (b), 49.141 (9) (title), 49.141 (10) (title) and (b), 49.49 (1) (title) and (a) (intro.), 49.49 (1) (b), 49.49 (2) (title) and (2) (a) (title), 49.49 (2) (b) (title), 49.49 (2) (c) (title), 49.49 (3) (title), 49.49 (3m) (title), 49.49 (3m) (b), 49.49 (4) (title), 49.795 (1) (cm), 49.795 (7), 49.795 (8) (a), (b) and (c) and 49.95; to renumber 49.495 (title) and 49.795 (title) and (1) (intro.); to renumber and amend 49.141 (7) (a), 49.141 (9) (a) to (c), 49.141 (10) (a), 49.49 (1) (a) 1. to 4., 49.49 (1) (c), 49.49 (2) (a), 49.49 (2) (b), 49.49 (2) (c), 49.49 (3), 49.49 (3m) (a), 49.495, 49.795 (1) (a), (b), (c), (d) and (e), 49.795 (2) to (6), 49.795 (8) (d) 1., 49.795 (8) (d) 1m., 49.795 (8) (d) 2. and 49.795 (8) (e) and (f); to consolidate, renumber and amend 49.49 (4) (a) and (b); to amend 49.141 (7) (c) (intro.) and 1., 49.141 (8), 49.32 (8), 49.45 (2) (b) 7. (intro.) and a., and (11), 49.49 (3p) (title), 49.49 (5), 49.49 (7) (d), 49.688 (9) (a), 49.797 (2) (a), 59.54 (23) and 940.11 (2); to repeal and recreate 49.141 (7) (title); and to create 49.835, 49.846 (1), 946.90 (title), 946.90 (1), 946.90 (2), 946.91 (title), (1) and (2) (intro.), 946.92 (3) (a) and 946.93 of the statutes; relating to: applications for public assistance programs, offenses in public assistance programs, granting rule-making authority, and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law, various offenses related to the Medical Assistance program (MA), Wisconsin Works (W-2), the federal Supplemental Nutrition Assistance Program, formerly known as the food stamp program and currently known in Wisconsin as FoodShare, and other public assistance programs administered by the Department of Children and Families (DCF) and the Department of Health Services (DHS) (public assistance programs) are subject to criminal penalties. For example, a person who makes or causes to be made any false statement or representation of a material fact in an application for a benefit or payment, or for use in determining rights to any benefit or payment, under MA is subject to a Class H felony. Similarly, a person who knowingly and willfully makes or causes to be made any false statement or representation of a material fact in an application for W-2 benefits or payments may be fined not more than $10,000, imprisoned for not more than nine months, or both. This bill moves offenses related to public assistance programs to the chapter of the Wisconsin Statutes that relates to crimes against government and its administration. Specifically, under the bill, that chapter of the Wisconsin Statutes contains provisions related to W-2 fraud, MA fraud, FoodShare fraud, and general public assistance fraud.

Under current law, the Department of Justice (DOJ) or a district attorney is authorized to prosecute violations of criminal laws affecting MA. Under the bill, DOJ or a district attorney is authorized to prosecute violations of criminal laws affecting any public assistance program, including W-2, FoodShare, and MA.

Under current law, any person who makes any statement in a written application for public assistance is considered to have made an admission as to the existence, correctness, or validity of any fact stated, which may be used in an enforcement action. Under the bill, an employee who accepts an application for public assistance is authorized to administer an oath to the applicant that the information given is true and correct to the best of the applicant's knowledge. The bill also requires DCF and DHS to promulgate rules providing standards and procedures for the administration of such an oath.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB245,1 Section 1. 49.141 (7) (title) of the statutes is repealed and recreated to read:

SB245,3,1 49.141 (7) (title) Suspensions.

SB245,2 Section 2 . 49.141 (7) (a) of the statutes is renumbered 946.90 (3) and amended to read:

SB245,3,7 946.90 (3) A person who is convicted of violating sub. (6) in connection with the Whoever violates sub. (2) by furnishing by that person of items or services for which payment is or may be made under Wisconsin works Works is guilty of a Class H felony.

SB245,3 Section 3. 49.141 (7) (b) of the statutes is repealed.

SB245,4 Section 4. 49.141 (7) (c) (intro.) and 1. of the statutes are amended to read:

SB245,3,14 49.141 (7) (c) (intro.) Except as provided in par. (d), in addition to the penalties applicable under par. (a) or (b) s. 946.90 (2) or (3), a person shall be suspended from participating in Wisconsin works Works for a period of 10 years, beginning on the date of conviction, if the person is convicted in a federal or state court for any of the following:

SB245,3,18 1. Violating sub. (6) (a) or s. 946.90 (2) (a) with respect to his or her identity or place of residence for the purpose of receiving simultaneously from this state and at least one other state assistance funded by a block grant under Title I of the Federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

SB245,5 Section 5. 49.141 (8) of the statutes is amended to read:

SB245,4,4 49.141 (8) Damages. If a person is convicted under sub. (6) s. 946.90 (2) or (3), the state has a cause of action for relief against the person in an amount equal to 3 times the amount of actual damages sustained as a result of any excess payments made in connection with the offense for which the conviction was obtained. Proof by the state of a conviction under sub. (6) s. 946.90 (2) or (3) is conclusive proof in a civil action of the state's right to damages and the only issue in controversy shall be the amount, if any, of the actual damages sustained. Actual damages consist of the total amount of excess payments, any part of which is paid with state funds. In a civil action under this subsection, the state may elect to file a motion in expedition of the action. Upon receipt of the motion, the presiding judge shall expedite the action.

SB245,6 Section 6. 49.141 (9) (title) of the statutes is repealed.

SB245,7 Section 7. 49.141 (9) (a) to (c) of the statutes are renumbered 946.90 (4) (a) to (c), and 946.90 (4) (a), (b) and (c) 1., as renumbered, are amended to read:

SB245,4,16 946.90 (4) (a) Whoever solicits or receives any remuneration in cash or in-kind money, goods, services, or any other thing of value, 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 Wisconsin works Works, or in return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under Wisconsin works Works, is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $25,000.

SB245,4,25 (b) Whoever offers or pays any remuneration in cash or in-kind provides money, goods, services, or any other thing of value to any person to induce the person 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 Wisconsin works Works, or to purchase, lease, order, or arrange for or recommend purchasing, leasing, or ordering any good, facility, service or item for which payment may be made in whole or in part under any provision of Wisconsin works Works, is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $25,000.

SB245,5,4 (c) 1. A discount or other reduction in price obtained by a provider of services or other entity under chs. 46 to 51 and 58 if the reduction in price is properly disclosed and appropriately reflected in the costs claimed or charges made by the provider or entity under Wisconsin works Works.

SB245,8 Section 8. 49.141 (10) (title) and (b) of the statutes are repealed.

SB245,9 Section 9 . 49.141 (10) (a) of the statutes is renumbered 946.90 (5) and amended to read:

SB245,5,16 946.90 (5) A provider may not who knowingly impose imposes upon a recipient participant in Wisconsin Works charges in addition to payments received by the provider for services under Wisconsin works Works or knowingly impose imposes direct charges upon a recipient participant in Wisconsin Works in lieu of obtaining payment under Wisconsin works unless Works is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $25,000. This subsection does not apply if benefits or services are not provided under Wisconsin works Works and the recipient Wisconsin Works participant is advised of this fact prior to receiving the service.

SB245,10 Section 10. 49.32 (8) of the statutes is amended to read:

SB245,6,2 49.32 (8) Periodic earnings check by department. The department shall make a periodic check of the amounts earned by recipients of aid to families with dependent children under s. 49.19 and by participants under Wisconsin works under ss. 49.141 to 49.161 through a check of the amounts credited to the recipient's social security number. The department shall make an investigation into any discrepancy between the amounts credited to a social security number and amounts reported as income on the declaration application and take appropriate action under s. 49.95 946.93 when warranted. The department shall use the state wage reporting system under 1985 Wisconsin Act 17, section 65 (1), when the system is implemented, to make periodic earnings checks.

SB245,11 Section 11. 49.45 (2) (b) 7. (intro.) and a., and (11) of the statutes are amended to read:

SB245,6,17 49.45 (2) (b) 7. (intro.) Require, as a condition of certification under par. (a) 11., all providers of a specific service that is among those enumerated under s. 49.46 (2), 49.47 (6) (a), or 49.471 (11), as specified in this subdivision, to file with the department a surety bond issued by a surety company licensed to do business in this state. Providers subject to this subdivision provide those services specified under s. 49.46 (2), 49.47 (6) (a), or 49.471 (11) for which providers have demonstrated significant potential to violate s. 49.49 (1) (a), (2) (a) or (b), (3), (3m) (a), (3p), (4) (a), or (4m) (a) or 946.91 (2), (3) (a) or (b), (4), (5), or (6), to require recovery under par. (a) 10., or to need additional sanctions under par. (a) 13. The surety bond shall be payable to the department in an amount that the department determines is reasonable in view of amounts of former recoveries against providers of the specific service and the department's costs to pursue those recoveries. The department shall promulgate rules to implement this subdivision that specify all of the following:

SB245,6,21 a. Services under medical assistance Medical Assistance for which providers have demonstrated significant potential to violate s. 49.49 (1) (a), (2) (a) or (b), (3), (3m) (a), (3p), (4) (a), or (4m) (a) or 946.91 (2), (3) (a) or (b), (4), (5), or (6), to require recovery under par. (a) 10., or to need additional sanctions under par. (a) 13.

SB245,6,24 (11) Penalty. Any person who receives or assists another in receiving assistance under this section, to which the recipient is not entitled, shall be subject to the penalties under s. 49.95 ss. 946.91 and 946.93.

SB245,12 Section 12. 49.49 (1) (title) and (a) (intro.) of the statutes are repealed.

SB245,13 Section 13. 49.49 (1) (a) 1. to 4. of the statutes are renumbered 946.91 (2) (a) to (d) and amended to read:

SB245,7,5 946.91 (2) (a) Knowingly and willfully make Intentionally makes or cause causes to be made any false statement or representation of a material fact in any application for any Medical Assistance benefit or payment.

SB245,7,8 (b) Knowingly and willfully make Intentionally makes or cause causes to be made any false statement or representation of a material fact for use in determining rights to such eligibility for any Medical Assistance benefit or payment.

SB245,7,15 (c) Having knowledge of the occurrence of any event affecting the initial or continued right to eligibility for any such Medical Assistance benefit or payment or the initial or continued right to eligibility for any such benefit or payment of any other individual in whose behalf he or she has applied for or is receiving such benefit or payment, conceal conceals or fail fails to disclose such event with an intent to fraudulently to secure such benefit or payment either in a greater amount or quantity than is due or when no such benefit or payment is authorized.

SB245,7,20 (d) Having made application applied to receive any such Medical Assistance benefit or payment for the use and benefit of another and having received it, knowingly and willfully convert such converts the benefit or payment or any part thereof to a use other than for the use and that is not for the benefit of such other person.

SB245,14 Section 14. 49.49 (1) (b) of the statutes is repealed.

SB245,15 Section 15. 49.49 (1) (c) of the statutes is renumbered 49.49 (1d) and amended to read:

SB245,8,8 49.49 (1d) Damages. If any person is convicted under this subsection s. 946.91 (2), the state shall have a cause of action for relief against such person in an amount 3 times the amount of actual damages sustained as a result of any excess payments made in connection with the offense for which the conviction was obtained. Proof by the state of a conviction under this section s. 946.91 (2) in a civil action shall be conclusive regarding the state's right to damages and the only issue in controversy shall be the amount, if any, of the actual damages sustained. Actual damages shall consist of the total amount of excess payments, any part of which is paid by state funds. In any such civil action the state may elect to file a motion in expedition of the action. Upon receipt of the motion, the presiding judge shall expedite the action.

SB245,16 Section 16. 49.49 (2) (title) and (2) (a) (title) of the statutes are repealed.

SB245,17 Section 17 . 49.49 (2) (a) of the statutes is renumbered 946.91 (3) (a) and amended to read:

SB245,8,22 946.91 (3) (a) Any person who Whoever solicits or receives any remuneration, including any kickback, bribe, or rebate, directly or , indirectly, overtly, or covertly, in cash or in kind, money, goods, services, or any other thing of value 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 a medical assistance program Medical Assistance, or in return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under a medical assistance program Medical Assistance, is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $25,000.

SB245,18 Section 18. 49.49 (2) (b) (title) of the statutes is repealed.

SB245,19 Section 19 . 49.49 (2) (b) of the statutes is renumbered 946.91 (3) (b) and amended to read:

SB245,9,11 946.91 (3) (b) Whoever offers or pays any remuneration including any kickback, bribe, or rebate provides, directly or, indirectly, overtly, or covertly, in cash or in kind money, goods, services, or any other thing of value to any person to induce such person 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 a medical assistance program Medical Assistance, or to purchase, lease, order, or arrange for or recommend purchasing, leasing, or ordering any good, facility, service or item for which payment may be made in whole or in part under a medical assistance program Medical Assistance, is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $25,000.

SB245,20 Section 20. 49.49 (2) (c) (title) of the statutes is repealed.

SB245,21 Section 21. 49.49 (2) (c) of the statutes is renumbered 946.91 (3) (c) and amended to read:

SB245,9,15 946.91 (3) (c) This subsection shall does not apply to any of the following:

SB245,9,19 1. A discount or other reduction in price obtained by a provider of services or other entity under chs. 46 to 51 and 58 if the reduction in price is properly disclosed and appropriately reflected in the costs claimed or charges made by the provider or entity under a medical assistance program Medical Assistance.

SB245,9,22 2. Any An amount 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.

SB245,22 Section 22. 49.49 (3) (title) of the statutes is repealed.

SB245,23 Section 23 . 49.49 (3) of the statutes is renumbered 946.91 (4) and amended to read:

SB245,10,9 946.91 (4) No person may Whoever knowingly and willfully make makes or cause causes to be made, or induce induces or seek seeks to induce the making of, any false statement or representation of a material fact with respect to the conditions or operation 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 health agency . A person who violates this subsection is guilty of a Class H felony, except that, notwithstanding the maximum fine specified in s. 939.50 (3) (h), the person may be fined not more than $25,000.

SB245,24 Section 24. 49.49 (3m) (title) of the statutes is repealed.

SB245,25 Section 25 . 49.49 (3m) (a) of the statutes is renumbered 946.91 (5), and 946.91 (5) (intro.), (a), (b) and (c), as renumbered, are amended to read: