Bill Text: MS SB2218 | 2020 | Regular Session | Introduced
Bill Title: Office of Medicaid Inspector General; create.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2020-03-03 - Died In Committee [SB2218 Detail]
Download: Mississippi-2020-SB2218-Introduced.html
MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Medicaid; Appropriations
By: Senator(s) Wiggins
Senate Bill 2218
AN ACT TO CREATE A NEW OFFICE OF MEDICAID INSPECTOR GENERAL AS A SUBAGENCY INDEPENDENT OF, BUT HOUSED WITHIN, THE DIVISION OF MEDICAID; TO PROVIDE FOR A MEDICAID INSPECTOR GENERAL TO BE APPOINTED BY THE GOVERNOR; TO REQUIRE THE EXECUTIVE DIRECTOR OF THE MISSISSIPPI DIVISION OF MEDICAID AND THE MEDICAID INSPECTOR GENERAL TO DEVELOP A TRANSITION PLAN FOR IMPLEMENTATION OF THE NEW OFFICE OF THE MEDICAID INSPECTOR GENERAL, INCLUDING THE TRANSFER OF THE FUNCTIONS OF THE OFFICES OF PROGRAM INTEGRITY, OFFICE OF THIRD-PARTY RECOVERY AND OFFICE OF APPEALS IN THE DIVISION OF MEDICAID TO THE OFFICE OF THE MEDICAID INSPECTOR GENERAL; TO IMPOSE DUTIES UPON THE OFFICE OF MEDICAID INSPECTOR GENERAL TO PREVENT AND DETECT FRAUD, WASTE AND ABUSE WITHIN THE MEDICAID PROGRAM OPERATED BY THE DIVISION OF MEDICAID; TO AUTHORIZE THE MEDICAID INSPECTOR GENERAL TO INVESTIGATE FRAUD, WASTE AND ABUSE AND SEEK ADMINISTRATIVE AND CIVIL RECOVERY FROM PROVIDERS AND RECIPIENTS, INCLUDING TREBLE DAMAGES; TO REQUIRE THE MEDICAID INSPECTOR GENERAL TO SUBMIT AN ANNUAL REPORT TO THE GOVERNOR, THE LIEUTENANT GOVERNOR, THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, THE JOINT LEGISLATIVE COMMITTEE ON PERFORMANCE EVALUATION AND EXPENDITURE REVIEW, THE STATE AUDITOR, AND THE ATTORNEY GENERAL SUMMARIZING THE ACTIVITIES OF THE OFFICE OF THE MEDICAID INSPECTOR GENERAL DURING THE PRECEDING FISCAL YEAR; TO REQUIRE THE DIVISION OF MEDICAID TO CONSULT WITH THE OFFICE OF MEDICAID INSPECTOR GENERAL TO DEVELOP, TEST, RECOMMEND AND IMPLEMENT METHODS TO STRENGTHEN THE CAPABILITY OF THE MEDICAID MANAGEMENT INFORMATION SYSTEM TO DETECT AND CONTROL FRAUD, WASTE AND ABUSE; TO REQUIRE CERTAIN PROVIDERS OF MEDICAID-PROGRAM BENEFITS, SERVICES OR ITEMS TO IMPLEMENT A COMPLIANCE PROGRAM; TO AUTHORIZE THE MEDICAID INSPECTOR GENERAL TO RENDER ADVISORY OPINIONS UPON REQUEST FROM PROVIDERS OR INSURERS PARTICIPATING IN THE MEDICAID PROGRAM; TO AMEND SECTIONS 43-13-118, 43-13-120, 43-13-121, 43-13-125, 43-13-126, 43-13-127, 43-13-221, 43-13-223, 43-13-225, 43-13-301, 43-13-303, 43-13-305, 43-13-307, 43-13-311, 43-13-313, 43-13-315, AND 43-13-317, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS; TO AMEND SECTION 25-3-39, MISSISSIPPI CODE OF 1972, TO REQUIRE THE GOVERNOR TO FIX THE ANNUAL SALARY OF THE MEDICAID INSPECTOR GENERAL AT A LEVEL NO GREATER THAN ONE HUNDRED FIFTY PERCENT (150%) OF THE SALARY FIXED FOR THE GOVERNOR AND TO EXEMPT THE MEDICAID INSPECTOR GENERAL FROM THE RULE PROHIBITING ANY PUBLIC OFFICER, EMPLOYEE OR ADMINISTRATOR FROM BEING PAID A SALARY IN EXCESS OF THE SALARY OF THE AGENCY HEAD IN WHICH THE PUBLIC OFFICER, EMPLOYEE OR ADMINISTRATOR IS EMPLOYED; TO AMEND SECTION 27-104-7, MISSISSIPPI CODE OF 1972, TO EXEMPT PERSONAL SERVICES CONTRACTS ENTERED INTO BY THE MISSISSIPPI DIVISION OF MEDICAID THAT WOULD BE USEFUL IN ESTABLISHING AND OPERATING THE OFFICE OF MEDICAID INSPECTOR GENERAL AS WELL AS PERSONAL SERVICES CONTRACTS ENTERED INTO BY THE OFFICE OF MEDICAID INSPECTOR GENERAL FROM THE STATE PUBLIC PROCUREMENT REVIEW BOARD RULES AND REGULATIONS; TO AMEND SECTION 25-9-127, MISSISSIPPI CODE OF 1972, TO EXEMPT ACTIONS OF THE OFFICE OF MEDICAID INSPECTOR GENERAL FROM THE STATE PERSONNEL BOARD RULES, REGULATIONS AND PROCEDURES; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Medicaid Inspector General Act."
SECTION 2. The purpose of this act is to:
(a) Consolidate staff and transfer Medicaid fraud detection, prevention and recovery functions from the Mississippi Division of Medicaid into the new Office of Medicaid Inspector General which shall operate as a subagency, independent of, but housed within, the Division of Medicaid;
(b) Create a more efficient and accountable structure;
(c) Reorganize and streamline the state's processes for detecting and combating Medicaid fraud and abuse; and
(d) Maximize the recovery of improper Medicaid payments through administrative recoupments and civil enforcement recovery actions.
SECTION 3. As used in this act:
(a) "Abuse" means health care provider practices that are inconsistent with sound fiscal, business, or medical practices and result in an unnecessary cost to the Medicaid program or in reimbursement for services that are not medically necessary or that fail to meet professionally recognized standards for health care. "Abuse" includes recipient practices that result in an unnecessary cost to the Medicaid program.
(b) "Civil enforcement action" means any legal proceeding brought to recover funds or property improperly paid to a provider or recipient and to recover civil penalties from a provider or recipient as authorized in this chapter.
(c) "Fraud" means a purposeful or intentional deception or misrepresentation made by a person with the knowledge that the deception could result in some unauthorized benefit to the person or to another person.
(i) With respect to this section, "knowledge" requires no proof of specific intent to defraud and means that a person:
1. Has actual knowledge of the information contained in an application for benefits or claim for reimbursement for health care services, benefits or items provided under the Medicaid program;
2. Acts with deliberate ignorance of the truth or falsity of the information contained in an application for benefits or claim for reimbursement for health care services, benefits or items provided under the Medicaid program; or
3. Acts in reckless disregard of the truth or falsity of the information contained in an application for benefits or claim for reimbursement for health care services, benefits or items provided under the Medicaid program.
(ii) "Fraud" includes any act that constitutes either civil or criminal fraud under applicable federal or state law.
(d) "Health plan" means a publicly or privately funded health insurance or managed care plan or contract under which a health care service, benefit or item is provided and through which payment is made to a person who provided the health care service, benefit or item.
(e) "Investigation" means investigations of fraud, waste, abuse or illegal acts perpetrated within the Medicaid program by providers or recipients of medical care, services and supplies.
(f) "Provider" means any individual, group of individuals, company or institution which offers any health care service, benefit or item, including treatment, supplies or diagnostic services to any recipient under the Medicaid program.
(g) "Recipient" means a person who is eligible for assistance under Title XIX or XXI of the Social Security Act, as amended, and as defined in Section 43-13-105(e).
(h) "Recovery action" means any action or attempt by the Medicaid Inspector General to recoup or collect Medicaid payments already made to a provider with respect to a claim or to recoup assistance already paid to a recipient by:
(i) Reducing other payments currently owed to the provider;
(ii) Withholding or setting off the amount against current or future payments to the provider;
(iii) Demanding payment back from a provider for a claim already paid or from a recipient for assistance already paid to a recipient; or
(iv) Reducing or affecting in any other manner the future claims payments to the provider or assistance to a recipient, including suspending payments.
(i) "Single health plan" includes, without limitation, the medical assistance program known as the Medicaid program and administered by the Mississippi Division of Medicaid under the Mississippi Medicaid Law set forth in Sections 43-13-101, et seq.
(j) "Waste" means overutilization, underutilization or other misuse of resources that result in unnecessary costs to the Medicaid program which are not the result of a criminal or intentional act by the provider or recipient.
SECTION 4. (1) The Office of Medicaid Inspector General is hereby created within the Mississippi Division of Medicaid.
(2) The Medicaid Inspector General shall be the Chief Administrative Officer of the Office of Medicaid Inspector General.
(a) With the advice and consent of the Senate, the Governor shall appoint the Medicaid Inspector General.
(b) The Medicaid Inspector General shall serve at the will and pleasure of the Governor.
(3) The Office of the Medicaid Inspector General shall be a subagency independent of, but housed within, the Mississippi Division of Medicaid. The Medicaid Inspector General shall maintain complete and exclusive operational control of the Office of Medicaid Inspector General's functions, except those functions shared with the Division of Medicaid as provided in this chapter.
(4) The Office of the Medicaid Inspector General is an agency as defined in Section 25-43-3 and, therefore, must comply in all respects with the Administrative Procedures Law, Section 25-43-1.101, et seq.
(5) The Medicaid Inspector General and his or her successor shall serve for an initial term of four (4) years. Upon expiration of the initial term of appointment, the Medicaid Inspector General shall serve at the will and pleasure of the Governor until his or her successor has been appointed.
(6) The Medicaid Inspector General shall have a master's or doctoral degree, including a law degree, from an accredited institution of higher learning and not have less than ten (10) years of professional experience in one or more of the following areas of expertise:
(a) Prosecution of health care fraud;
(b) Health care fraud investigations;
(c) Health care auditing; or
(d) Comparable alternate experience in health care, involving some consideration of fraud.
SECTION 5. (1) The Medicaid Inspector General may assign to the appropriate offices and bureaus within the Office of Medicaid Inspector General the powers and duties deemed appropriate to carry out the lawful functions of the programs transferred to the Office of Medicaid Inspector General under this act. The Medicaid Inspector General may employ deputy inspectors general as he or she deems appropriate who shall serve at his or her will and pleasure to direct the bureaus and offices necessary to carry out the lawful functions of the Office of Medicaid Inspector General transferred to the Office of Medicaid Inspector General from the Division of Medicaid by this act.
(2) The Medicaid Inspector General and the Executive Director of the Division of Medicaid shall develop and implement a plan for the orderly establishment of the Office of Medicaid Inspector General and for the transfer of all duties, functions, records, personnel, property, PINS, unexpended balances of appropriations, allocations, or other funds of the Division of Medicaid necessary to the operation of the Office of Medicaid Inspector General.
(3) The plan required by subsection (2) of this section shall:
(a) Describe a mechanism for the transfer of any equipment, supplies, records, furnishings or other materials, PINS, resources or funds currently dedicated to the operation of the Office of Program Integrity (including its constituent divisions, the Audit Contract Management Division, the Investigation Review Division, the Medicaid Eligibility Quality Control Division, the Data Analysis Division, and the Medical Review Division), the Office of Third Party Recovery (including its constituent divisions, File Maintenance, Bookkeeping, Health and Casualty, Special Needs Trusts, Beneficiary Recoupment and Estate Recovery), the Office of Appeals (including eligibility appeals), and the Surveillance and Utilization Review Subsystem ("SURS") in the Division of Medicaid and other offices or bureaus as are deemed necessary to the orderly transfer of the fraud waste and abuse detection, prevention, recovery and civil enforcement operations to the Office of Medicaid Inspector General within the Division of Medicaid;
(b) Determine the allocation of resources between the newly created Office of Medicaid Inspector General and the Division of Medicaid;
(c) Determine whether the Division of Medicaid can continue to provide any administrative support services, such as Information Technology Services, bookkeeping or payroll to the Office of Medicaid Inspector General or whether the Division of Medicaid should transfer all of those services to the Office of Medicaid Inspector General;
(d) Identify other areas deemed relevant by the Medicaid Inspector General or the Executive Director of the Division of Medicaid and make recommendations thereon to achieve an orderly transition.
SECTION 6. (1) The Office of Medicaid Inspector General shall:
(a) Prevent, detect and investigate fraud, waste and abuse within the Medicaid program operated by the Division of Medicaid;
(b) Refer appropriate cases for criminal prosecution;
(c) Recover improperly expended Medicaid-program funds by either administrative recoupments or civil enforcement actions brought in the name of the Medicaid Inspector General on behalf of the State of Mississippi;
(d) Audit Medicaid-program functions; and
(e) Establish a program to prevent, investigate, recover and recoup fraud, waste and abuse within the Medicaid program.
SECTION 7. The Medicaid Inspector General shall:
(a) Hire deputies, directors, assistants and other officers and employees needed for the performance of his or her duties and prescribe the duties and qualifications of deputies, directors, assistants and other officers and set the compensation of deputies, directors, assistants, and other officers within the amounts appropriated.
(b) Conduct and supervise activities to prevent, detect, and investigate fraud, waste and abuse in the Medicaid program and may:
(i) Review provider records limited to four (4) years prior to the date the investigation began pursuant to the record retention provision of Section 43-13-118; and
(ii) Review provider records up to five (5) years prior to the date the investigation began if the Office of Medicaid Inspector General has received a credible allegation of fraud or has reason to believe that fraud has occurred.
(c) Work in a coordinated and cooperative manner with:
(i) Federal, state and local law enforcement agencies;
(ii) The Medicaid Fraud Control Unit of the Office of the Attorney General;
(iii) United States attorneys;
(iv) United States Department of Health and Human Services, Office of Inspector General;
(v) The Federal Bureau of Investigation;
(vi) The Drug Enforcement Administration;
(vii) District attorneys;
(viii) The Centers for Medicare and Medicaid Services, including any of its contractors such as the Unified Program Integrity Contractor responsible for program integrity in the Medicaid and Medicare programs in the State of Mississippi; and
(ix) Any investigative unit maintained by a health insurer, including, but not limited to, the Special Investigation Units of any coordinated care organization participating in the Mississippi Coordinated Access Network.
(d) Solicit, receive and investigate complaints related to fraud, waste and abuse within the Medicaid program.
(e) Inform the Governor, the Attorney General, the Lieutenant Governor, the Speaker of the House of Representatives, and the State Auditor regarding efforts to prevent, detect, investigate and prosecute fraud, waste and abuse within the Medicaid program and to conduct administrative recoupments and civil enforcement actions.
(f) Refer all cases in which criminal fraud is determined to have occurred to the appropriate law enforcement agency for prosecution.
(g) Pursue civil and administrative enforcement actions against an individual or entity that engages in fraud, waste, abuse or illegal or improper acts within the Medicaid program, including, without limitation:
(i) Referral of information and evidence to regulatory agencies and licensure boards;
(ii) Withholding payment of Medicaid-program funds in accordance with state laws and rules and federal laws and regulations;
(iii) Imposition of administrative sanctions and penalties in accordance with state laws and rules and federal laws and regulations;
(iv) Exclusion of providers, vendors and contractors from participation in the Medicaid program;
(v) Initiating or joining in any existing actions and maintaining actions, where authorized by law, for civil recovery of actual damages, civil penalties, treble damages and seizure of property or other assets connected with improper payments;
(vi) Entering into civil settlements;
(vii) Recovery of improperly expended Medicaid-program funds from those who engage in fraud, waste, abuse or illegal or improper acts perpetrated within the Medicaid program; and
(viii) Identification and recovery of cases involving third-party liability, including, without limitation, third-party insurance benefits, health insurance or other health coverage maintained by the recipient or absent parent.
(h) Consider the quality and availability of medical care and services and the best interest of both the Medicaid program and recipients in investigating civil and administrative enforcement actions under paragraph (g).
(i) Make available to appropriate law enforcement officials information and evidence relating to suspected criminal acts obtained in the course of the Medicaid Inspector General's duties.
(j) Refer suspected criminal fraud or other criminal activity to the Medicaid Fraud Control Unit within the Office of the Attorney General. After this referral, with ten (10) days' written notice to the Medicaid Fraud Control Unit within the Office of the Attorney General, the Medicaid Inspector General may provide relevant information about suspected criminal fraud or other criminal activity to another federal or state law enforcement agency that the Medicaid Inspector General deems appropriate under the circumstances.
(k) Subpoena or issue civil investigative demands to enforce the attendance of witnesses, administer oaths and affirmations, examine witnesses under oath, and take testimony in connection with any investigation or audit under this act and under rules adopted by the Inspector General governing these investigations.
(l) Require and compel the production of books, papers, records and documents as the Medicaid Inspector General deems relevant or material to an investigation, examination or review undertaken under this section, including by issuing subpoenas or civil investigative demands for such books, papers, records and documents returnable to the Medicaid Inspector General.
(m) Adopt and publish applicable rules and regulations pertaining to the issuance of civil investigative demands or subpoenas for records and/or examination of witnesses under oath and taking of testimony in connection with an investigation or audit.
(n) Examine and copy or remove documents or records related to the Medicaid program or necessary for the Medicaid Inspector General to perform his duties if the documents are prepared, maintained or held by or available to a state agency or local governmental entity the patients or clients of which are served by the Medicaid program, or the entity is otherwise responsible for the control of fraud, waste and abuse within the Medicaid program;
(i) A document or record examined or copied or removed by the Medicaid Inspector General under this paragraph (n) is confidential;
(ii) The removal of a record under this paragraph (n) is limited to circumstances in which a copy of the record is insufficient for an appropriate legal or investigative purpose; and
(iii) For a removal under this paragraph (n), the Medicaid Inspector General shall copy the record and ensure the expedited return of the original, or of a copy if the original is required for an appropriate legal or investigative purpose, so that the information is expedited and the original or copy is readily accessible for the care and treatment needs of the patient.
(o) Recommend and implement policies relating to the prevention and detection of fraud and abuse. The Medicaid Inspector General shall obtain the consent of the Attorney General before the implementation of a policy under this paragraph (o) that may affect the operations of the Office of the Attorney General.
(p) Monitor the implementation of a recommendation made by the Office of Medicaid Inspector General to an agency or other entity with responsibility for administration of the Medicaid program and produce a report detailing the results of its monitoring activity as necessary which report shall be submitted to the:
(i) Governor;
(ii) Lieutenant Governor;
(iii) Speaker of the House of Representatives; and
(iv) Attorney General.
(q) Prepare cases, provide testimony, and support administrative hearings, civil enforcement actions and other legal proceedings.
(r) Review and audit contracts, cost reports, claims, bills, and other expenditures of Medicaid-program funds to determine compliance with applicable state laws and rules and federal laws and regulations and take actions authorized by state laws and rules and federal laws and regulations.
(s) Work with the fiscal agent employed to operate the Medicaid Management Information System or any successor or replacement system of the Division of Medicaid to optimize the system, including, without limitation, the ability to add edits and audits with the approval of the Division of Medicaid, which fiscal agent shall obtain the Medicaid Inspector General's approval before any edit or audit is added or discontinued by the Division of Medicaid.
(t) Work in a coordinated and cooperative manner with relevant agencies in the implementation of information technology relating to the prevention and identification of fraud, waste and abuse in the Medicaid program.
(u) Conduct educational programs for Medicaid program providers, vendors, contractors, and recipients designed to limit fraud, waste and abuse within the Medicaid program;
(i) Communicate regularly with and educate providers about the Office of Medicaid Inspector General's fraud, waste and abuse prevention program and its audit and investigation policies and procedures;
(ii) Educate providers annually concerning the Office of Medicaid Inspector General's areas of focus within the Medicaid program and its audit and investigation policies and procedures through outreach meetings and through publication of the Office of Medicaid Inspector General's annual Work Plan which shall be posted on the website of the Medicaid Inspector General.
(v) Develop protocols to facilitate the efficient self-disclosure by providers consistent with the Patient Protection and Affordable Care Act, Public Law No. 111-148, and collection of overpayments. The Office of Medicaid Inspector General may consider a provider's good faith self-disclosure of overpayments that were based upon error, mistake or oversight and not as a result of fraud, waste or abuse as a mitigating factor in the determination and resolution of an administrative recoupment or civil enforcement action or in the commencement of a civil enforcement action.
(w) Monitor collections, including those that providers self-disclose under paragraph (v).
(x) Receive and investigate complaints of alleged failure of state and local officials to prevent, detect and prosecute fraud, waste and abuse in the Medicaid program.
(y) Implement rules relating to the prevention, detection, investigation, and referral of fraud and abuse within the Medicaid program and to the recovery of improperly expended Medicaid-program funds.
(z) Conduct, in the context of the investigation of fraud, waste and abuse, on-site inspections of a facility or an office.
(aa) Take appropriate authorized actions to ensure that the Medicaid program is the payor of last resort.
(bb) Recommend to the Division of Medicaid that it take appropriate actions authorized under the Division of Medicaid's jurisdiction to ensure that the Medicaid program is the payor of last resort.
(cc) Submit, annually, a budget request for the next state fiscal year to the Executive Director of the Division of Medicaid.
(dd) Identify and order the return of underpayments to providers, in conjunction with the work of the Recovery Audit Contractor and based upon the work of the Office of the Medicaid Inspector General.
(ee) Maintain the confidentiality of all information and documents that are deemed confidential by law.
(ff) Implement, facilitate and maintain federally required directives and contracts required for Medicaid integrity programs, including any contract or agreement with the Unified Program Integrity Contractor and the Recovery Audit Contractor.
(gg) Implement and maintain a hotline for reporting complaints regarding fraud, waste and abuse by providers and recipients.
(hh) Audit, investigate, and access encounter data, premium data or other information from an entity contracted for the purpose of serving the Medicaid program as part of the Mississippi Coordinated Access Network.
(ii) Implement rules to establish policies and procedures for audits and investigations that are consistent with the duties of the Office of Medicaid Inspector General under this act.
(jj) Identify conflicts between the Medicaid state plan, department rules, Medicaid provider manuals, Medicaid notices, or other guidance and recommend that the Division of Medicaid reconcile any inconsistencies.
(kk) Classify violations found during an audit, investigation or review under this act as either:
(i) Errors that do not rise to the level of fraud, waste or abuse; or
(ii) Errors that are fraud, waste or abuse.
(ll) Review provider records that have been the subject of a previous audit or review for the purpose of fraud investigation and referral if a credible allegation of fraud has been made, but the Medicaid Inspector General shall not duplicate an audit of a contract, cost report, claim, bill, or expenditure of Medicaid-program funds that have been the subject of a previous audit or review by or on behalf of the Office of Medicaid Inspector General, the Medicaid Fraud Control Unit, or other federal or state agency with authority over the Medicaid program providing the audit or review was performed in accordance with Government Auditing Standards.
(mm) Utilize, as part of the assessment of quality services, a quality improvement organization pursuant to any contract or engagement entered into by the Division of Medicaid which shall refer all identified improper payments due to technical deficiencies, abuse, waste, or fraud to the Medicaid Inspector General for further investigation and appropriate action.
(nn) Promulgate any rules and regulations under this act in accordance with the Mississippi Administrative Procedures Law, Section 25-43-1.101, et seq.
(oo) Perform other functions necessary or appropriate to fulfill the duties and responsibilities of the Office of Medicaid Inspector General.
SECTION 8. (1) The Medicaid Inspector General shall request information, assistance, and cooperation from a federal, state, or local governmental department, board, bureau, commission or other agency or unit of an agency to carry out the duties of the Medicaid Inspector General under this section.
(2) A state or local agency or unit of an agency shall provide information, assistance, and cooperation under this section.
(3) Upon request of a prosecuting attorney, the following entities shall provide information and assistance as the entity deems necessary, appropriate, and available to aid the prosecutor in the investigation of fraud and abuse within the Medicaid program and the recovery of improperly expended funds:
(a) The Office of Medicaid Inspector General;
(b) The Division of Medicaid;
(c) The Medicaid Fraud Control Unit of the Office of the Attorney General; and
(d) Any other state or local governmental entity.
(4) The Division of Medicaid shall forward to the Office of Medicaid Inspector General all tips reported to the Mississippi Medicaid Fraud and Abuse Hotline that include an allegation of fraud.
SECTION 9. (1) The Office of Medicaid Inspector General may seek judicial enforcement of his or her subpoena or civil investigative demand by filing a petition with the Circuit Court of the First Judicial District of Hinds County or the circuit court of the county in which the person, provider or recipient, who is the subject of the subpoena or civil investigative demand, resides if:
(a) The person, provider or recipient subpoenaed or served a civil investigative demand has failed to give testimony under oath or to produce the specified books, papers, records, and documents; and
(b) The Office of Medicaid Inspector General has given the person, provider or recipient reasonable notice of the failure to respond. The petition filed under this subsection (1) shall include a certification regarding the notice given and the failure of such person, provider or recipient to give testimony under oath or to produce the specified books, papers, records, and documents.
(2) Upon the filing of such petition specified in subsection (1) of this section, the court shall order the person, provider or recipient named in the petition to show cause as to the failure to comply with the subpoena or civil investigative demand. The court shall have authority to employ all judicial powers as provided by law to compel compliance with the subpoena or civil investigative demand, including those powers granted in Rule 32 of the Mississippi Rules of Criminal Procedure pertaining to civil contempt. The court shall be authorized to impose costs and sanctions against any person, provider or recipient in the same manner and on the same bases as may be imposed for failure to comply with judicially issued subpoenas, including those powers granted in Rule 37 of the Mississippi Rules of Civil Procedure.
SECTION 10. (1) The Medicaid Inspector General shall, no later than July 15 of each year, submit a report to the Governor, Lieutenant Governor, the Speaker of the House of Representatives, the Joint Legislative Committee on Performance Evaluation and Expenditure Review, the State Auditor and the Attorney General. The report shall summarize the activities of the Office of Medicaid Inspector General during the preceding fiscal year.
(a) The report shall include, without limitation, the number, subject, and other relevant characteristics of:
(i) Investigations initiated, joined in, and completed, including, without limitation, the outcome, region, source of complaint, and whether or not the Office of Medicaid Inspector General conducted the investigation jointly with the Office of the Attorney General or any other state, federal or local law enforcement agency;
(ii) Audits initiated and completed, including, without limitation, the outcome, region, the reason for the audit, the total state and federal dollar value identified for recovery, the actual state and federal recovery from the audits, and the amount repaid to the Centers for Medicare and Medicaid Services;
(iii) Administrative actions initiated and completed, including, without limitation, the outcome, region and type;
(iv) Referrals for prosecution to the Medicaid Fraud Control Unit in the Office of the Attorney General and to federal or state law enforcement agencies, and to licensing authorities, including the status and region of the administrative action;
(v) Civil enforcement actions initiated by the Office of Medicaid Inspector General related to improper payments generated by fraud, waste or abuse, the resulting civil judgments obtained or civil settlements entered, overpayments identified, and the total dollar value identified and collected; and
(vi) Administrative and education activities conducted to improve compliance with Medicaid-program policies and requirements.
(b) The report shall also include:
(i) A narrative that evaluates the Office of Medicaid Inspector General's performance, describes specific problems with the procedures and agreements required under this section, discusses other matters that may have impaired the Office of Medicaid Inspector General's effectiveness and summarizes the total savings to the state Medicaid program;
(ii) In addition to total savings, the narrative shall detail net savings in state funds. As used in this paragraph (b), "net savings" means amounts recovered by the Office of Medicaid Inspector General less payments made to the Centers for Medicare and Medicaid Services and the costs of state administrative procedures.
(2) The Office of Medicaid Inspector General may subpoena individuals, books, electronic and other records, and documents that are necessary for the completion of reports under this section.
(3) (a) In making the report required under subsection (1) of this section, the Medicaid Inspector General shall not disclose information that jeopardizes any ongoing investigation or proceeding within the Office of the Medicaid Inspector General or being conducted by the Medicaid Fraud Control Unit within the Attorney General's Office.
(b) The Medicaid Inspector General may disclose information in the report required under subsection (1) of this section if the information does not jeopardize an ongoing investigation or proceeding and the Medicaid Inspector General fully apprises the designated recipients of the scope and quality of the Office of Medicaid Inspector General's activities.
(4) At least twice each fiscal year, but no later than January 15 and no later than July 15, the Medicaid Inspector General shall submit to the Governor, Lieutenant Governor, the Speaker of the House of Representatives, the Joint Legislative Committee on Performance Evaluation and Expenditure Review the State Auditor, and the Attorney General an accountability statement providing a statistical profile of the referrals made to the Medicaid Fraud Control Unit of the Office of the Attorney General and of all audits, investigations and civil recoveries.
SECTION 11. (1) The Division of Medicaid shall consult with the Office of the Medicaid Inspector General regarding an activity undertaken by a fiscal intermediary or fiscal agent pertaining to suspected fraud, waste or abuse.
(2) The Division of Medicaid, with the approval of the Office of Medicaid Inspector General, shall:
(a) Develop, test, recommend and implement methods to strengthen the capability of the Medicaid Management Information System or any successor or replacement system to detect and control fraud, waste and abuse and improve expenditure accountability;
(b) Enter into an agreement concerning data mining technology with a fiscal agent that has demonstrated expertise in the areas addressed by the agreement to develop, test, and implement new methods under subsection (2)(a) of this section;
(c) Develop, test, recommend, and implement an automated process to improve the coordination of benefits between the Medicaid program and other sources of coverage for Medicaid recipients;
(i) Initially examine (by means of the automated process under subsection (2)(c) of this section) the savings potential to the Medicaid program through a retrospective review of claims paid;
(ii) Complete the examination under subsection (2)(c)(i) of this section no later than January 1, 2021; and
(iii) Examine the savings potential through prospective, pre-payment review in subsequent tests, if based upon the initial examination under subsection (2)(c)(i) of this section, the Medicaid Inspector General deems the automated process to be capable of including or moving to a prospective review, with negligible effect on the turnaround of claims for provider payment or on recipient access to services;
(d) Take all reasonable and necessary actions to intensify the state's current level of monitoring, analyzing, reporting and responding to Medicaid-program claims data maintained by the state's Medicaid Management Information System fiscal agent and ensure that any data abnormalities identified are reported to the Office of Medicaid Inspector General for appropriate action;
(e) Make efforts to improve the utilization of data in order to better assist the Office of Medicaid Inspector General in identifying fraud, waste and abuse within the Medicaid program and to identify and implement further program and patient care reforms for the improvement of the program;
(f) Identify additional data elements that are maintained and otherwise accessible by the state, directly or through any of its contractors, that would, if coordinated with Medicaid-program data, further assist the Office of Medicaid Inspector General in increasing the effectiveness of data analysis for the management of the Medicaid program;
(g) Provide or arrange for in-service training for state and regional Medicaid personnel to increase the capability for state and regional data analysis to move toward a more cost-effective operation of the Medicaid program;
(h) Assist the Office of Medicaid Inspector General, no later than January 1, 2021, in developing, testing and implementing an automated process for the targeted review of claims, services, populations, or a combination of claims, services and populations to identify statistical aberrations in the use or billing of the services and to assist in the development and implementation of measures to ensure that service use and billings are appropriate to recipients' needs; and
(i) Pay providers for underpayments identified through actions of the Office of Medicaid Inspector General and by the Recovery Audit Contractor.
(3) The methods developed and recommended under subsection (2)(a) of this section shall address, without limitation, the development, testing, and implementation of an automated claims review process that, before payment, shall subject a Medicaid-program services claim to review for proper coding and any other review as may be necessary.
(a) Services subject to review shall be based on:
(i) The expected cost-effectiveness of reviewing the service;
(ii) The capabilities of the automated system for conducting the review; and
(iii) The potential to implement the review with negligible effect or impact on the turnaround of claims for provider payment or on recipient access to necessary services.
(b) A review under subsection (3)(a) of this section shall be designed to provide for the efficient and effective operation of the Medicaid-program claims payment system by performing functions, including, without limitation:
(i) Capturing coding errors, misjudgments, incorrect or multiple billings for the same service; and
(ii) Possible excesses in billing for service use, whether intentional or unintentional.
(4) (a) No later than December 1, 2020, the Executive Director of the Division of Medicaid in conjunction with the Office of Medicaid Inspector General shall prepare and submit an interim report to the Governor, to the chairs of the Medicaid Committees in the Senate and the House of Representatives, and to the Executive Director of the Joint Legislative Committee on Performance Evaluation and Expenditure Review on the implementation of the initiatives under this section.
(b) The report under subsection (4)(a) of this section shall also include a recommendation for any revision that would further facilitate the goals of this section, including recommendations for expansion of the Office of Medicaid Inspector General.
(5) Applicable Medicaid-program rules, provider manuals and administrative policies, procedures and guidance adopted or published by the Division of Medicaid shall be posted on the Office of Medicaid Inspector General's website, or be made available by a link from the Office of Medicaid Inspector General's website to the Division of Medicaid's website.
SECTION 12. (1) The Legislature finds that:
(a) Medicaid providers potentially are able to detect and correct payment and billing mistakes and deter fraud if required to develop and implement compliance programs;
(b) A provider compliance program makes it possible to organize provider resources to resolve payment discrepancies, detect inaccurate billings as quickly and efficiently as possible, and to impose systemic checks and balances to prevent future recurrences;
(c) It is in the public interest that providers within the Medicaid program voluntarily implement compliance programs;
(d) The wide variety of provider types in the Medicaid program necessitates a variety of compliance programs that reflect a provider's size, complexity, resources and culture;
(e) An effective compliance program must be designed to be compatible with the provider's characteristics;
(f) Key components shall be included in each compliance program if a provider is to participate in the Medicaid program; and
(g) A provider should adopt and implement an effective compliance program appropriate to the provider.
(2) A provider of Medicaid-program services, benefits or items that is receiving annually Seven Hundred Fifty Thousand Dollars ($750,000.00) or more through the State Medicaid program shall adopt and implement a compliance program.
(3) (a) The Office of the Medicaid Inspector General shall create and make available on its website guidelines, including a model compliance program, for each type of Medicaid provider.
(b) A model compliance program under subsection (3)(a) of this section shall be applicable to billings to and payments from the Medicaid program but need not be confined solely to billings and payments.
(c) The compliance program required under subsection (2) of this section may be a component of a more comprehensive compliance program by the Medicaid-program provider if the comprehensive compliance program meets the requirements of this section.
(4) A compliance program shall include, without limitation:
(a) A written policy and procedure that:
(i) Describes compliance expectations;
(ii) Describes the implementation of the compliance program;
(iii) Describes the operation of the compliance program;
(iv) Provides guidance to employees and others on dealing with potential compliance issues;
(v) Identifies a method for communicating compliance issues to appropriate compliance personnel; and
(vi) Describes the method by which potential compliance problems are investigated and resolved;
(b) A designated employee who:
(i) Shall have sole responsibility for the operations of the compliance program;
(ii) Shall have duties solely related to compliance or have compliance duties in combination with other duties if the person satisfactorily carries out his or her compliance duties;
(iii) Shall be the only employee responsible for the compliance program and shall not share this duty with another employee in order to assure accountability; and
(iv) Shall report directly to the health care provider's chief executive or other senior administrator and periodically shall report directly to the governing body of the provider on the activities of the compliance program.
(c) Training and education of affected employees and persons associated with the provider, including executive and governing body members, on compliance issues, expectations, and the compliance program operation, which training and education shall occur periodically at intervals of no less than once each year and shall be made a part of the orientation for all new employees, appointees, associates, executives or governing body members.
(d) Lines of communication to the designated compliance employee which:
(i) Shall be accessible to all employees, persons associated with the provider, executives, and governing body members to allow compliance issues to be reported; and
(ii) Shall include a method and means for anonymous and confidential good-faith reporting of potential compliance issues as they are identified;
(e) Disciplinary policies to encourage good-faith participation in the compliance program by all affected individuals and employees, including a policy that articulates expectations for reporting compliance issues and assisting in their resolution, and outlines sanctions for:
(i) Failing to report suspected problems;
(ii) Participating in noncompliant behavior; and
(iii) Encouraging, directing, facilitating or permitting noncompliant behavior.
(f) A system for routine identification of compliance risk areas specific to the provider type for:
(i) Self-evaluation of risk areas, including internal audits and, as appropriate, external audits; and
(ii) Prompt evaluation of potential or actual noncompliance as a result of the self-evaluations and audits.
(g) A system for:
(i) Responding to compliance issues as they are raised;
(ii) Investigating potential compliance problems;
(iii) Responding to compliance problems as identified in the course of self-evaluations and audits;
(iv) Correcting problems promptly and thoroughly and implementing procedures, policies, and systems to reduce the potential for recurrence;
(v) Promptly identifying and reporting compliance issues to the Division of Medicaid or the Office of Medicaid Inspector General; and
(vi) Refunding overpayments.
(h) A policy of nonintimidation and nonretaliation for good-faith participation in the compliance program by employees, including, without limitation:
(i) Reporting potential issues;
(ii) Investigating issues;
(iii) Self-evaluations;
(iv) Audits and remedial actions; and
(v) Reporting to appropriate officials.
(5) Upon enrollment in the Medicaid program, a provider shall certify to the Division of Medicaid that the provider satisfactorily meets the requirements of this section.
(6) The Medicaid Inspector General shall determine whether a provider has a compliance program that satisfactorily meets the requirements of this section by requesting, no less than one time each year, an updated certification that the provider satisfactorily meets the requirements of this section.
(7) The Medicaid Inspector General may randomly audit Medicaid providers to determine whether they are maintaining an adequate compliance program as required by this section.
(8) A compliance program complies with this section if the United States Department of Health and Human Services, Office of Inspector General, approves it and it remains in compliance with the standards adopted by of the Office of Medicaid Inspector General.
(9) If the Medicaid Inspector General finds that a provider does not have a satisfactory compliance program within ninety (90) days after the effective date of a rule adopted under this section, the provider is subject to any sanction or penalty permitted by a state law or rule or a federal law or regulations, including revocation of the provider's agreement to participate in the Medicaid program or imposition of a monetary sanction in an amount to be determined by the Medicaid Inspector General.
(10) The Office of Medicaid Inspector General shall adopt rules to implement this section and may amend the rules as needed from time to time. The rules and any amendments to the rules under this section shall be subject to review by the Accountability, Efficiency and Transparency Committees of the House of Representatives and the Senate.
SECTION 13. (1) The Medicaid Inspector General may render advisory opinions upon request from providers participating in the Medicaid program.
(2) As used in this section, "advisory opinion" means a written statement by the Medicaid Inspector General or his or her designee that explains the applicability to a specified set of facts of a pertinent statutory or regulatory provision relating to the provision of medical services, benefits or items under the Medicaid program administered by the Division of Medicaid.
(3) The Medicaid Inspector General may only issue an advisory opinion at the request of a provider currently enrolled in the Medicaid program or any health care insurer participating in the Mississippi Coordinated Access Network as a coordinated care organization:
(a) Except as set forth under subsection (8) of this section, the opinion is binding upon the Medicaid Inspector General with respect to that provider or insurer only.
(b) If the Medicaid Inspector General cannot respond to the request for an advisory opinion, the Medicaid Inspector General shall notify the provider or insurer within thirty (30) days that he or she will not be responding to the request for an opinion.
(4) A provider or insurer may request an advisory opinion concerning:
(a) Substantive matters;
(b) Procedural matters;
(c) Questions arising before an audit or investigation concerning a provider's claim(s) for payment or reimbursement; and
(d) A hypothetical or projected service plan which is not already in existence or operation.
(5) The Medicaid Inspector General shall not issue an advisory opinion if the request for an advisory opinion relates to a pending question raised by the provider in an ongoing or initiated investigation conducted by the Medicaid Inspector General, the Attorney General, a criminal investigation, or a civil or criminal proceeding, or if the provider has received a written notice from the Medicaid Inspector General that advises the provider of a prospective or imminent investigation, audit, suspended claim or withholding of payment or reimbursement.
(6) This section does not supersede any federal regulation, law, requirement or guidance and is not intended to replace or interfere with any advisory opinion procedures already available through the United States Department of Health and Human Services, Office of Inspector General, or the Centers for Medicare and Medicaid Services.
(7) The Medicaid Inspector General shall adopt a rule establishing the time within which an advisory opinion shall be issued and the criteria for determining the eligibility of a request for a response from the of Medicaid Inspector General. Such rule shall be consistent with the provisions of Section 25-43-2.103 and this advisory opinion process shall constitute the sole declaratory opinion process available from the Medicaid Inspector General.
(8) An advisory opinion represents an expression of the view of the Medicaid Inspector General as to the application of laws, rules and other precedential materials only as to the set of facts specified in the request for an advisory opinion.
(9) A previously issued advisory opinion found by the Medicaid Inspector General to be in error may be modified or revoked.
(a) Any modification or revocation of an opinion operates prospectively.
(b) If a recovery of Medicaid-program overpayments is caused by a provider's reliance on an advisory opinion that the Medicaid Inspector General later modifies or revokes, the Medicaid Inspector General shall not recover for the time period up until the modification or revocation unless the provider is involved in fraud.
(c) The Medicaid Inspector General shall promptly notify the requesting provider of a modification or revocation of an advisory opinion.
(10) An advisory opinion shall include the following notice: "This advisory opinion is limited to the person or persons who requested the opinion, and it pertains only to the facts and circumstances disclosed to the Inspector General and presented in the request."
(11) An advisory opinion shall cite the pertinent law, regulation or rule upon which the advisory opinion is based.
(12) An advisory opinion shall not state the name of the requesting provider or insurer but shall refer to the provider or insurer simply as the "requesting party" or by a similar phrase.
(13) An advisory opinion or modification or revocation of a previously issued advisory opinion is a public record. The name of the provider or insurer listed as the requesting party in an advisory opinion, however, is not a public record and shall not be considered a public record.
(14) The Medicaid Inspector General shall post all issued advisory opinions and all modifications or revocations of previously issued advisory opinions on the Office of Medicaid Inspector General's website in a format easily accessible to the public.
SECTION 14. Section 43-13-118, Mississippi Code of 1972, is amended as follows:
43-13-118. It shall be the
duty of each provider participating in the medical assistance program to keep
and maintain books, documents, and other records as prescribed by the division
of Medicaid in substantiation of its claim for services rendered Medicaid
recipients, and such books, documents, and other records shall be kept and
maintained for a period of five (5) years or for whatever longer period as may
be required or prescribed under federal or state statutes and shall be subject
to audit by the division and the Office of Medicaid Inspector General.
The division shall be entitled to full recoupment of the amount it has paid any
provider of medical service who has failed to keep or maintain records as
required * * *.
SECTION 15. Section 43-13-120, Mississippi Code of 1972, is amended as follows:
43-13-120. (1) Any person
who is a Medicaid recipient and is receiving medical assistance for services
provided in a long-term care facility under the provisions of Section 43-13-117
from the Division of Medicaid in the Office of the Governor, who dies intestate
and leaves no known heirs, shall have deemed, through his acceptance of such
medical assistance, the * * *Division of Medicaid Office of Medicaid Inspector General
as his beneficiary to all such funds in an amount not to exceed Two Hundred
Fifty Dollars ($250.00) which are in his possession at the time of his death.
Such funds, together with any accrued interest thereon, shall be reported by
the long-term care facility to the State Treasurer in the manner provided in
subsection (2).
(2) The report of such funds shall be verified, shall be on a form prescribed or approved by the Treasurer, and shall include (a) the name of the deceased person and his last known address prior to entering the long-term care facility; (b) the name and last known address of each person who may possess an interest in such funds; and (c) any other information which the Treasurer prescribes by regulation as necessary for the administration of this section. The report shall be filed with the Treasurer prior to November 1 of each year in which the long-term care facility has provided services to a person or persons having funds to which this section applies.
(3) Within one hundred
twenty (120) days from November 1 of each year in which a report is made
pursuant to subsection (2), the Treasurer shall cause notice to be published in
a newspaper having general circulation in the county of this state in which is
located the last known address of the person or persons named in the report who
may possess an interest in such funds, or if no such person is named in the
report, in the county in which is located the last known address of the
deceased person prior to entering the long-term care facility. If no address
is given in the report or if the address is outside of this state, the notice
shall be published in a newspaper having general circulation in the county in
which the facility is located. The notice shall contain (a) the name of the
deceased person; (b) his last known address prior to entering the facility; (c)
the name and last known address of each person named in the report who may
possess an interest in such funds; and (d) a statement that any person
possessing an interest in such funds must make a claim therefor to the Treasurer
within ninety (90) days after such publication date or the funds will become
the property of the State of Mississippi. In any year in which the Treasurer
publishes a notice of abandoned property under Section 89-12-27, the Treasurer
may combine the notice required by this section with the notice of abandoned
property. The cost to the Treasurer of publishing the notice required by this
section shall be paid by the * * * Office of Medicaid
Inspector General.
(4) Each long-term care facility that makes a report of funds of a deceased person under this section shall pay over and deliver such funds, together with any accrued interest thereon, to the Treasurer not later than ten (10) days after notice of such funds has been published by the Treasurer as provided in subsection (3). If a claim to such funds is not made by any person having an interest therein within ninety (90) days of the published notice, the Treasurer shall place such funds in the special account in the State Treasury to the credit of the "Governor's Office - Division of Medicaid" to be expended by the Division of Medicaid for the purposes provided under Mississippi Medicaid Law.
(5) This section shall not be applicable to any Medicaid patient in a long-term care facility of a state institution listed in Section 41-7-73, who has a personal deposit fund as provided for in Section 41-7-90.
SECTION 16. Section 43-13-121, Mississippi Code of 1972, is amended as follows:
43-13-121. (1) The division, in conjunction with the Office of Medicaid Inspector General where specified in this section, shall administer the Medicaid program under the provisions of this article, and may do the following:
(a) Adopt and promulgate reasonable rules, regulations and standards, with approval of the Governor, and in accordance with the Administrative Procedures Law, Section 25-43-1.101 et seq.:
(i) Establishing methods and procedures as may be necessary for the proper and efficient administration of this article;
(ii) Providing Medicaid to all qualified recipients under the provisions of this article as the division may determine and within the limits of appropriated funds;
(iii) Establishing reasonable fees, charges and rates for medical services and drugs; in doing so, the division shall fix all of those fees, charges and rates at the minimum levels absolutely necessary to provide the medical assistance authorized by this article, and shall not change any of those fees, charges or rates except as may be authorized in Section 43-13-117;
(iv) Providing for fair and impartial hearings;
(v) Providing safeguards for preserving the confidentiality of records; and
(vi) For detecting and processing fraudulent practices and abuses of the program;
(b) Receive and expend state, federal and other funds in accordance with court judgments or settlements and agreements between the State of Mississippi and the federal government, the rules and regulations promulgated by the division and by the Office of Medicaid Inspector General, with the approval of the Governor, and within the limitations and restrictions of this article and within the limits of funds available for that purpose;
(c) Subject to the limits imposed by this article, to submit a Medicaid plan to the United States Department of Health and Human Services for approval under the provisions of the federal Social Security Act, to act for the state in making negotiations relative to the submission and approval of that plan, to make such arrangements, not inconsistent with the law, as may be required by or under federal law to obtain and retain that approval and to secure for the state the benefits of the provisions of that law.
No agreements, specifically including the general plan for the operation of the Medicaid program in this state, shall be made by and between the division or the Office of Medicaid Inspector General and the United States Department of Health and Human Services unless the Attorney General of the State of Mississippi has reviewed the agreements, specifically including the operational plan, and has certified in writing to the Governor and to the executive director of the division that the agreements, including the plan of operation, have been drawn strictly in accordance with the terms and requirements of this article;
(d) In accordance with the purposes and intent of this article and in compliance with its provisions, provide for aged persons otherwise eligible for the benefits provided under Title XVIII of the federal Social Security Act by expenditure of funds available for those purposes;
(e) To make reports to the United States Department of Health and Human Services as from time to time may be required by that federal department and to the Mississippi Legislature as provided in this section;
(f) Define and determine the scope, duration and amount of Medicaid that may be provided in accordance with this article and establish priorities therefor in conformity with this article;
(g) Cooperate and contract with other state agencies for the purpose of coordinating Medicaid provided under this article and eliminating duplication and inefficiency in the Medicaid program;
(h) Adopt and use an official seal of the division and of the Office of Medicaid Inspector General;
(i) Sue in * * * the name of the division or
in the name of the Office of Medicaid Inspector General on behalf of the
State of Mississippi and employ legal counsel on a contingency basis with the
approval of the Attorney General;
(j) The Office of
Medicaid Inspector General shall be authorized to recover any and all
payments incorrectly made by the division to a recipient or provider from the
recipient or provider receiving the payments. * * * Except with respect to civil
enforcement actions brought in the circuit courts by the Office of Medicaid
Inspector General, the Office of Medicaid Inspector General shall be
authorized to collect any administrative
overpayments to providers sixty (60) days after the conclusion of any
administrative appeal unless the matter is appealed to a court of proper
jurisdiction and bond is posted. Any appeal filed after July 1, 2015, shall be
to the Chancery Court of the First Judicial District of Hinds County,
Mississippi, within sixty (60) days after the date that the * * * Office of Medicaid Inspector
General has notified the provider by certified mail sent to the proper
address of the provider on file with the division and the provider has signed
for the certified mail notice, or sixty (60) days after the date of the final
decision if the provider does not sign for the certified mail notice. To
recover those payments, the * * * Office of Medicaid Inspector
General may use the following methods, in addition to any other methods
available to the * * * Office of Medicaid Inspector General:
(i) The * * * Office of Medicaid Inspector
General shall report to the Department of Revenue the name of any current
or former Medicaid recipient who has received medical services rendered during
a period of established Medicaid ineligibility and who has not reimbursed the * * * Office of Medicaid Inspector
General for the related medical service payment(s). The Department of
Revenue shall withhold from the state tax refund of the individual, and pay to
the division, the amount of the payment(s) for medical services rendered to the
ineligible individual that have not been reimbursed to the * * * Office of Medicaid Inspector
General for the related medical service payment(s).
(ii) The * * * Office of Medicaid Inspector
General shall report to the Department of Revenue the name of any Medicaid
provider to whom payments were incorrectly made that the division or the
Medicaid Inspector General has not been able to recover by other methods
available to the division or the Medicaid Inspector General. The
Department of Revenue shall withhold from the state tax refund of the provider,
and pay to the division, the amount of the payments that were incorrectly made
to the provider that have not been recovered by other available methods;
(k) To recover any and all payments by the division fraudulently obtained by a recipient or provider. Additionally, if recovery of any payments fraudulently obtained by a recipient or provider is made in any court, then, upon motion of the Governor, the judge of the court may award twice the payments recovered as damages;
(l) Have full,
complete and plenary power and authority to conduct such investigations as * * * the Office of Medicaid Inspector General
may deem necessary and requisite of alleged or suspected violations or abuses
of the provisions of this article or of the regulations adopted under this
article, including, but not limited to, fraudulent or unlawful act or deed by
applicants for Medicaid or other benefits, or payments made to any person, firm
or corporation under the terms, conditions and authority of this article, to
suspend or disqualify any provider of services, applicant or recipient for
gross abuse, fraudulent or unlawful acts for such periods, including
permanently, and under such conditions as the * * * Office of Medicaid Inspector
General deems proper and just, including the imposition of a legal rate of
interest on the amount improperly or incorrectly paid. Recipients who are
found to have misused or abused Medicaid benefits may be locked into one (1)
physician and/or one (1) pharmacy of the recipient's choice for a reasonable
amount of time in order to educate and promote appropriate use of medical
services, in accordance with federal regulations. If an administrative hearing
becomes necessary, the * * *
Office of Medicaid Inspector General may, if the provider does not
succeed in his or her defense, tax the costs of the administrative hearing,
including the costs of the court reporter or stenographer and transcript, to
the provider. The convictions of a recipient or a provider in a state or
federal court for abuse, fraudulent or unlawful acts under this chapter shall
constitute an automatic disqualification of the recipient or automatic
disqualification of the provider from participation under the Medicaid program.
A conviction, for the purposes of this chapter, shall include a judgment entered on a plea of nolo contendere or a nonadjudicated guilty plea and shall have the same force as a judgment entered pursuant to a guilty plea or a conviction following trial. A certified copy of the judgment of the court of competent jurisdiction of the conviction shall constitute prima facie evidence of the conviction for disqualification purposes;
(m) Establish and provide such methods of administration as may be necessary for the proper and efficient operation of the Medicaid program, fully utilizing computer equipment as may be necessary to oversee and control all current expenditures for purposes of this article, and to closely monitor and supervise all recipient payments and vendors rendering services under this article. Notwithstanding any other provision of state law, the division is authorized to enter into a ten-year contract(s) with a vendor(s) to provide services described in this paragraph (m). Notwithstanding any provision of law to the contrary, the division is authorized to extend its Medicaid Management Information Systems, including all related components and services, and Decision Support System, including all related components and services, contracts expiring on June 30, 2015, for a period not to exceed five (5) years without complying with the requirements provided in Section 25-9-120 and the Personal Service Contract Review Board procurement regulations;
(n) To cooperate and contract with the federal government for the purpose of providing Medicaid to Vietnamese and Cambodian refugees, under the provisions of Public Law 94-23 and Public Law 94-24, including any amendments to those laws, only to the extent that the Medicaid assistance and the administrative cost related thereto are one hundred percent (100%) reimbursable by the federal government. For the purposes of Section 43-13-117, persons receiving Medicaid under Public Law 94-23 and Public Law 94-24, including any amendments to those laws, shall not be considered a new group or category of recipient; and
(o) The division shall impose penalties upon Medicaid only, Title XIX participating long-term care facilities found to be in noncompliance with division and certification standards in accordance with federal and state regulations, including interest at the same rate calculated by the United States Department of Health and Human Services and/or the Centers for Medicare and Medicaid Services (CMS) under federal regulations.
(2) The division and the Office of Medicaid Inspector General also shall exercise such additional powers and perform such other duties as may be conferred upon the division and the Office of Medicaid Inspector General by act of the Legislature.
(3) The division, the Office of Medicaid Inspector General and the State Department of Health as the agency for licensure of health care facilities and certification and inspection for the Medicaid and/or Medicare programs, shall contract for or otherwise provide for the consolidation of on-site inspections of health care facilities that are necessitated by the respective programs and functions of the division, the Office of Medicaid Inspector General and the department.
(4) The * * * Office of Medicaid Inspector
General and * * *
their hearing officers shall have power to preserve and enforce order
during hearings; to issue subpoenas for, to administer oaths to and to compel
the attendance and testimony of witnesses, or the production of books, papers,
documents and other evidence, or the taking of depositions before any
designated individual competent to administer oaths; to examine witnesses; and
to do all things conformable to law that may be necessary to enable them
effectively to discharge the duties of their office. In compelling the
attendance and testimony of witnesses, or the production of books, papers,
documents and other evidence, or the taking of depositions, as authorized by
this section, the * * *
Office of Medicaid Inspector General or its hearing officers may
designate an individual employed by the * * * Office of Medicaid Inspector
General or some other suitable person to execute and return that process,
whose action in executing and returning that process shall be as lawful as if
done by the sheriff or some other proper officer authorized to execute and
return process in the county where the witness may reside. In carrying out the
investigatory powers under the provisions of this article, the executive
director or the Medicaid Inspector General or other designated person or
persons may examine, obtain, copy or reproduce the books, papers, documents,
medical charts, prescriptions and other records relating to medical care and
services furnished by the provider to a recipient or designated recipients of
Medicaid services under investigation. In the absence of the voluntary
submission of the books, papers, documents, medical charts, prescriptions and
other records, the Governor, the executive director or the Medicaid
Inspector General or other designated person may issue and serve subpoenas
instantly upon the provider, his or her agent, servant or employee for the
production of the books, papers, documents, medical charts, prescriptions or
other records during an audit or investigation of the provider. If any
provider or his or her agent, servant or employee refuses to produce the
records after being duly subpoenaed, the executive director or the Medicaid
Inspector General may certify those facts and institute contempt
proceedings in the manner, time and place as authorized by law for
administrative proceedings. As an additional remedy, the division or the
Office of Medicaid Inspector General may recover all amounts paid to the
provider covering the period of the audit or investigation, inclusive of a
legal rate of interest and a reasonable attorney's fee and costs of court if
suit becomes necessary. Division staff and staff of the Office of Medicaid
Inspector General shall have immediate access to the provider's physical
location, facilities, records, documents, books, and any other records relating
to medical care and services rendered to recipients during regular business
hours.
(5) If any person in proceedings before the division or the Office of Medicaid Inspector General disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the hearing, or neglects to produce, after having been ordered to do so, any pertinent book, paper or document, or refuses to appear after having been subpoenaed, or upon appearing refuses to take the oath as a witness, or after having taken the oath refuses to be examined according to law, the executive director or the Medicaid Inspector General shall certify the facts to any court having jurisdiction in the place in which it is sitting, and the court shall thereupon, in a summary manner, hear the evidence as to the acts complained of, and if the evidence so warrants, punish that person in the same manner and to the same extent as for a contempt committed before the court, or commit that person upon the same condition as if the doing of the forbidden act had occurred with reference to the process of, or in the presence of, the court.
(6) In suspending or
terminating any provider from participation in the Medicaid program, the
division or the Office of Medicaid Inspector General shall preclude the
provider from submitting claims for payment, either personally or through any
clinic, group, corporation or other association to the division or its fiscal
agents for any services or supplies provided under the Medicaid program except
for those services or supplies provided before the suspension or termination.
No clinic, group, corporation or other association that is a provider of
services shall submit claims for payment to the division or its fiscal agents
for any services or supplies provided by a person within that organization who
has been suspended or terminated from participation in the Medicaid program
except for those services or supplies provided before the suspension or
termination. When this provision is violated by a provider of services that is
a clinic, group, corporation or other association, the division or the
Office of Medicaid Inspector General may suspend or terminate that
organization from participation. Suspension may be applied by the * * * Office of Medicaid Inspector
General to all known affiliates of a provider, provided that each decision
to include an affiliate is made on a case-by-case basis after giving due regard
to all relevant facts and circumstances. The violation, failure or inadequacy
of performance may be imputed to a person with whom the provider is affiliated
where that conduct was accomplished within the course of his or her official
duty or was effectuated by him or her with the knowledge or approval of that
person.
(7) The * * * Office of Medicaid Inspector
General may deny or revoke enrollment in the Medicaid program to a provider
if any of the following are found to be applicable to the provider, his or her
agent, a managing employee or any person having an ownership interest equal to
five percent (5%) or greater in the provider:
(a) Failure to truthfully or fully disclose any and all information required, or the concealment of any and all information required, on a claim, a provider application or a provider agreement, or the making of a false or misleading statement to the division or the Office of Medicaid Inspector General relative to the Medicaid program.
(b) Previous or current exclusion, suspension, termination from or the involuntary withdrawing from participation in the Medicaid program, any other state's Medicaid program, Medicare or any other public or private health or health insurance program. If the division or the Office of Medicaid Inspector General ascertains that a provider has been convicted of a felony under federal or state law for an offense that the division or the Office of Medicaid Inspector General determines is detrimental to the best interest of the program or of Medicaid beneficiaries, the division or the Office of Medicaid Inspector General may refuse to enter into an agreement with that provider, or may terminate or refuse to renew an existing agreement.
(c) Conviction under federal or state law of a criminal offense relating to the delivery of any goods, services or supplies, including the performance of management or administrative services relating to the delivery of the goods, services or supplies, under the Medicaid program, any other state's Medicaid program, Medicare or any other public or private health or health insurance program.
(d) Conviction under federal or state law of a criminal offense relating to the neglect or abuse of a patient in connection with the delivery of any goods, services or supplies.
(e) Conviction under federal or state law of a criminal offense relating to the unlawful manufacture, distribution, prescription or dispensing of a controlled substance.
(f) Conviction under federal or state law of a criminal offense relating to fraud, theft, embezzlement, breach of fiduciary responsibility or other financial misconduct.
(g) Conviction under federal or state law of a criminal offense punishable by imprisonment of a year or more that involves moral turpitude, or acts against the elderly, children or infirm.
(h) Conviction under federal or state law of a criminal offense in connection with the interference or obstruction of any investigation into any criminal offense listed in paragraphs (c) through (i) of this subsection.
(i) Sanction for a violation of federal or state laws or rules relative to the Medicaid program, any other state's Medicaid program, Medicare or any other public health care or health insurance program.
(j) Revocation of license or certification.
(k) Failure to pay recovery properly assessed or pursuant to an approved repayment schedule under the Medicaid program.
(l) Failure to meet any condition of enrollment.
SECTION 17. Section 43-13-125, Mississippi Code of 1972, is amended as follows:
43-13-125. (1) If Medicaid
is provided to a recipient under this article for injuries, disease or sickness
caused under circumstances creating a cause of action in favor of the recipient
against any person, firm, corporation, political subdivision or other state
agency, then the * * *
Office of Medicaid Inspector General shall be entitled to recover the
proceeds that may result from the exercise of any rights of recovery that the
recipient may have against any such person, firm, corporation, political
subdivision or other state agency, to the extent of the Division of Medicaid's
interest on behalf of the recipient. The recipient shall execute and deliver
instruments and papers to do whatever is necessary to secure those rights and
shall do nothing after Medicaid is provided to prejudice the subrogation rights
of the * * *
Office of Medicaid Inspector General. Court orders or agreements for
reimbursement of Medicaid's interest shall direct those payments to the * * *
Office of
Medicaid Inspector General, which shall be authorized to endorse any and
all, including, but not limited to, multipayee checks, drafts, money orders, or
other negotiable instruments representing Medicaid payment recoveries that are
received. In accordance with Section 43-13-305, endorsement of multipayee
checks, drafts, money orders or other negotiable instruments by the * * * Office of Medicaid
Inspector General shall be deemed endorsed by the recipient. All payments
must be remitted to the * * *division Office of Medicaid Inspector General within
sixty (60) days from the date of a settlement or the entry of a final judgment;
failure to do so hereby authorizes the * * * Office of Medicaid Inspector
General to assert its rights under Sections 43-13-307 and 43-13-315, plus
interest.
The * * * Medicaid Inspector General,
with the approval of both the Executive Director of the Division of
Medicaid and the Governor, may compromise or settle any such claim and
execute a release of any claim it has by virtue of this section at the
division's sole discretion. Nothing in this section shall be construed to
require the * * * Office of Medicaid Inspector General to
compromise any such claim.
(2) The acceptance of
Medicaid under this article or the making of a claim under this article shall
not affect the right of a recipient or his or her legal representative to
recover Medicaid's interest as an element of damages in any action at law; however,
a copy of the pleadings shall be certified to the * * * Office of Medicaid Inspector
General at the time of the institution of suit, and proof of that notice
shall be filed of record in that action. The * * * Office of Medicaid Inspector
General may, at any time before the trial on the facts, join in that action
or may intervene in that action. Any amount recovered by a recipient or his or
her legal representative shall be applied as follows:
(a) The reasonable
costs of the collection, including attorney's fees, as approved and allowed by
the court in which that action is pending, or in case of settlement without
suit, by the legal representative of the * * * Office of Medicaid Inspector
General;
(b) The amount of
Medicaid's interest on behalf of the recipient; or such amount as may be
arrived at by the legal representative of the * * * Office of Medicaid Inspector
General and the recipient's attorney; and
(c) Any excess shall be awarded to the recipient.
(3) No compromise of any
claim by the recipient or his or her legal representative shall be binding upon
or affect the rights of the * * * Office of Medicaid Inspector
General against the third party unless the * * * Office of Medicaid Inspector
General, with the approval of the Governor, has entered into the compromise
in writing. The recipient or his or her legal representative maintain the
absolute duty to notify the * * * Office of Medicaid Inspector
General of the institution of legal proceedings, and the third party and
his or her insurer maintain the absolute duty to notify the * * *
Office of Medicaid Inspector General of a proposed compromise for which
the * * *
Office of Medicaid Inspector General has an interest. The
aforementioned absolute duties may not be delegated or assigned by contract or
otherwise. Any compromise effected by the recipient or his or her legal representative
with the third party in the absence of advance notification to and * * * approval by the * * * Office of Medicaid Inspector
General shall constitute conclusive evidence of the liability of the third
party, and the * * * Office of Medicaid Inspector General, in litigating its
claim against the third party, shall be required only to prove the amount and
correctness of its claim relating to the injury, disease or sickness. If the
recipient or his or her legal representative fails to notify the * * * Office of Medicaid Inspector
General of the institution of legal proceedings against a third party for
which the * * *
Office of Medicaid Inspector General has a cause of action, the facts
relating to negligence and the liability of the third party, if judgment is
rendered for the recipient, shall constitute conclusive evidence of liability
in a subsequent action maintained by the * * * Office of Medicaid Inspector
General and only the amount and correctness of the * * * Office of Medicaid Inspector
General's claim relating to injuries, disease or sickness shall be tried
before the court. The * * *
Office of Medicaid Inspector
General shall be authorized in bringing that action against the third party
and his or her insurer jointly or against the insurer alone.
(4) Nothing in this section
shall be construed to diminish or otherwise restrict the subrogation rights of
the * * * Office of Medicaid Inspector General against a third
party for Medicaid provided by the Division of Medicaid to the recipient as a
result of injuries, disease or sickness caused under circumstances creating a
cause of action in favor of the recipient against such a third party.
(5) Any amounts recovered
by the * * *
Office of Medicaid Inspector General under this section shall, by the * * * Office of Medicaid Inspector
General, be placed to the credit of the funds appropriated for benefits
under this article proportionate to the amounts provided by the state and
federal governments respectively.
SECTION 18. Section 43-13-126, Mississippi Code of 1972, is amended as follows:
43-13-126. As a condition of doing business in the state, health insurers, including self-insured plans, group health plans (as defined in Section 607(1) of the Employee Retirement Income Security Act of 1974), service benefit plans, managed care organizations, pharmacy benefit managers, or other parties that are by statute, contract, or agreement, legally responsible for payment of a claim for a health care item or service, are required to:
(a) Provide, with respect to individuals who are eligible for, or are provided, medical assistance under the state plan, upon the request of the Division of Medicaid or the Medicaid Inspector General, information to determine during what period the individual or their spouses or their dependents may be (or may have been) covered by a health insurer and the nature of the coverage that is or was provided by the health insurer (including the name, address and identifying number of the plan) in a manner prescribed by the Secretary of the Department of Health and Human Services;
(b) Accept the * * * Medicaid Inspector
General's right of recovery and the assignment to the division of any right
of an individual or other entity to payment from the party for an item or
service for which payment has been made under the state plan;
(c) Respond to any inquiry by the Division of Medicaid or the Medicaid Inspector General regarding a claim for payment for any health care item or service that is submitted not later than three (3) years after the date of the provision of that health care item or service; and
(d) Agree not to deny a claim submitted by the Division of Medicaid solely on the basis of the date of submission of the claim, the type or format of the claim form, or a failure to present proper documentation at the point of sale that is the basis of the claim, if:
(i) The claim is submitted by the division within the three-year period beginning on the date on which the item or service was furnished; and
(ii) Any action by the division or the Medicaid Inspector General to enforce its rights with respect to the claim is begun within six (6) years of the division's submission of the claim.
SECTION 19. Section 43-13-127, Mississippi Code of 1972, is amended as follows:
43-13-127. (1) Within sixty (60) days after the end of each fiscal year and at each regular session of the Legislature, the division shall make and publish a report to the Governor and to the Legislature, showing for the period of time covered the following:
(a) The total number of recipients;
(b) The total amount paid for medical assistance and care under this article;
(c) The total number of applications;
(d) The number of applications approved;
(e) The number of applications denied;
(f) The amount expended for administration of the provisions of this article;
(g) The amount of money received from the federal government, if any;
(h) The amount of money recovered by reason of collections from third persons by reason of assignment or subrogation, and the disposition of the same;
(i) The actions and activities of the division and the Office of Medicaid Inspector General in detecting and investigating suspected or alleged fraudulent practices, violations and abuses of the program; and
(
j) Any
recommendations it may have as to expanding, enlarging, limiting or restricting
the eligibility of persons covered by this article or services provided by this
article, to make more effective the basic purposes of this article; to
eliminate or curtail fraudulent practices and inequities in the plan or
administration thereof; and to continue to participate in receiving federal
funds for the furnishing of medical assistance under Title XIX of the Social
Security Act or other federal law.
(2) In addition to the reports required by subsection (1) of this section, the division shall submit a report each month to the Chairmen of the Public Health and Welfare Committees of the Senate and the House of Representatives and to the Joint Legislative Budget Committee that contains the information specified in each paragraph of subsection (1) for the preceding month.
SECTION 20. Section 43-13-221, Mississippi Code of 1972, is amended as follows:
43-13-221. (1) The Attorney General, acting through the Director of the Fraud Control Unit, may, in any case involving alleged violations of this article, conduct an investigation or prosecution. In conducting such actions, the Attorney General, acting through the director, shall have all the powers of a district attorney, including the powers to issue or cause to be issued subpoenas or other process.
(2) Persons employed by the Attorney General as investigators in the Medicaid Fraud Control Unit shall serve as law enforcement officers as defined in Section 45-6-3, and they shall be empowered to make arrests and to serve and execute search warrants and other valid legal process anywhere within the State of Mississippi.
(3) The Medicaid Inspector General shall have the authority only to conduct civil investigations and seek civil recoveries under this article. All criminal investigations under this article shall be conducted by the Attorney General, acting through the Director of the Fraud Control Unit.
(4) The Medicaid Inspector General shall have authority to issue subpoenas and civil investigative demands in furtherance of his or her investigations. The Medicaid Inspector General shall be empowered to commence civil enforcement actions and to issue valid legal process anywhere within the State of Mississippi.
SECTION 21. Section 43-13-223, Mississippi Code of 1972, is amended as follows:
43-13-223. (1) * * *
A criminal action brought in connection with any matter under this
article may be filed in the Circuit Court of the First Judicial District of
Hinds County or in the circuit court of the county in which the defendant
resides, and may be prosecuted to final judgment in satisfaction there.
(2) A civil action brought in connection with any matter under this article may be filed in the Circuit Court of the First Judicial District of Hinds County or in the circuit court of the county in which the defendant resides, and may be prosecuted to final judgment in satisfaction there.
(3) Appeals from a final, civil judgment entered in cases where the Medicaid Inspector General is a party shall be appealable to the Mississippi Supreme Court in the same manner as prescribed for other final judgments of a circuit court as set forth in Section 11-51-3. An appeal bond shall be required to perfect an appeal of a judgment under this subsection (3), consistent with the provisions of Section 11-51-31.
( * * *4) Process issued by a court in which
an action is filed may be served anywhere in the state.
SECTION 22. Section 43-13-225, Mississippi Code of 1972, is amended as follows:
43-13-225. (1) A health care provider or vendor committing any act or omission in violation of this article shall be directly liable to the state and shall forfeit and pay to the state a civil penalty equal to the full amount received, plus an additional civil penalty equal to triple the full amount received.
(2) A criminal action need not be brought against a person for that person to be civilly liable under this article.
(3) Regardless of whether a criminal action is brought against a recipient or provider, the Office of Medicaid Inspector General may bring a civil action or to join in any existing action under this article and any other applicable state or federal law to recover the amounts and penalties provided for in this article or such other applicable state or federal law. In bringing such civil enforcement actions against a recipient or a provider, the Medicaid Inspector General shall give consideration to the provider's or recipient's ability to pay a civil penalty in addition to repayment of an overpayment.
(4) An order for restitution in a criminal action shall not bar any civil enforcement action against the defendant. However, any payments made by a defendant under an order of restitution may be setoff against any judgment awarded in a civil enforcement action based upon the same facts for which restitution was ordered. The fact of restitution or an order of restitution under this section shall not be placed before the jury on the issue of liability in any civil enforcement action. If the amount of restitution made is in dispute and liability has been established in any civil enforcement action, the court shall order further appropriate proceedings to determine the amount of setoff to which the defendant is entitled.
SECTION 23. Section 43-13-301, Mississippi Code of 1972, is amended as follows:
43-13-301. The State
Department of * * * Human Services shall assist the Office of Medicaid
Inspector General in the Division of Medicaid in the Office of the Governor
in identifying cases involving, third-party liability, including,
without limitation, third-party insurance benefits, health insurance or other
health coverage maintained by the recipient or absent parent through intake,
initial determinations, and redeterminations of eligibility, and shall promptly
transmit such information to the * * * Office of Medicaid
Inspector General or the fiscal agent of the Division of Medicaid.
SECTION 24. Section 43-13-303, Mississippi Code of 1972, is amended as follows:
43-13-303. (1) The Department of Human Services, in administering its child support enforcement program on behalf of Medicaid and non-Medicaid recipients, or any other attorney representing a Medicaid recipient, shall include a prayer for medical support in complaints and other pleadings in obtaining a child support order whenever health-care coverage is available to the absent parent at a reasonable cost. Nothing in this section shall be construed to contradict the provisions of Section 43-19-101(6).
(2) Health insurance enrollment shall be on the form prescribed by the Department of Human Services unless a court or administrative order stipulates an alternative form of health-care coverage other than employer-based coverage. Employers must complete the employer response and return to the Department of Human Services within twenty (20) days. Employers must transfer the Medical Support Notice to Plan Administrator Part B to the appropriate group health plan providing any such health-care coverage for which the child(ren) is eligible within twenty (20) business days after the date of the notice. Employers must withhold any obligation of the employee for employee contributions necessary for coverage of the child(ren) and send any amount withheld directly to the plan. Employees may contest the withholding based on a mistake of fact. If the employee contests such withholding, the employer must initiate withholding until such time as the employer receives notice that the contest is resolved. Employers must notify the Department of Human Services promptly whenever the noncustodial parent's employment is terminated in the same manner as required for income withholding cases.
(3) Health insurers, including, but not limited to, ERISA plans, preferred provider organizations, and HMOs, shall not have contracts that limit or exclude payments if the individual is eligible for Medicaid, is not claimed as a dependent on the federal income tax return, or does not reside with the parent or in the insurer's service area.
Health insurers and employers shall honor court or administrative orders by permitting enrollment of a child or children at any time and by allowing enrollment by the custodial parent, the Division of Medicaid, or the Child Support Enforcement Agency if the absent parent fails to enroll the child(ren).
The health insurer and the employer shall not disenroll a child unless written documentation substantiates that the court order is no longer in effect, the child will be enrolled through another insurer, or the employer has eliminated family health coverage for all of its employees.
The employer shall allow payroll deduction for the insurance premium from the absent parent's wages and pay the insurer. The health insurer and the employer shall not impose requirements on the Medicaid recipient that are different from those applicable to any other individual. The health insurer shall provide pertinent information to the custodial parent to allow the child to obtain benefits and shall permit custodial parents to submit claims to the insurer.
The health insurer and
employer shall notify the Division of Medicaid and the Department of Human
Services when lapses in coverage occur in court-ordered insurance. If the
noncustodial parent has provided such coverage and has changed employment, and
the new employer provides health-care coverage, the Department of Human
Services shall transfer notice of the provision to the employer, which notice
shall operate to enroll the child in the noncustodial parent's health plan,
unless the noncustodial parent contests the notice. The health insurer and
employer shall allow payments to the provider of medical services, shall honor
the assignment of rights to third-party sources by the Medicaid recipient and
the subrogation rights of the * * * Office of Medicaid
Inspector General as set forth in Section 43-13-305, Mississippi Code of
1972, and shall permit payment to the custodial parent.
The employer shall allow the * * * Office of Medicaid
Inspector General to garnish wages of the absent parent when such parent
has received payment from the third party for medical services rendered to the
insured child and such parent has failed to reimburse the Division of Medicaid
to the extent of the medical service payment.
Any insurer or the employer
who fails to comply with the provisions of this subsection shall be liable to
the * * * Office Medicaid Inspector General to the extent of
payments made to the provider of medical services rendered to a recipient to
which the third party or parties, is, are, or may be liable.
(4) The * * * Office of Medicaid
Inspector General shall report to the Mississippi * * * Department of Revenue
an absent parent who has received third-party payment(s) for medical services
rendered to the insured child and who has not reimbursed the Division of
Medicaid for the related medical service payment(s). The Mississippi * * * Department of Revenue shall withhold from the
absent parent's state tax refund, and pay to the * * * Office of Medicaid
Inspector General, the amount of the third-party payment(s) for medical
services rendered to the insured child and not reimbursed to the Division of
Medicaid for the related medical service payment(s).
SECTION 25. Section 43-13-305, Mississippi Code of 1972, is amended as follows:
43-13-305. (1) By
accepting Medicaid from the Division of Medicaid in the Office of the Governor,
the recipient shall, to the extent of the payment of medical expenses by the
Division of Medicaid, be deemed to have made an assignment to the * * * Medicaid Inspector
General of any and all rights and interests in any third-party benefits,
hospitalization or indemnity contract or any cause of action, past, present or
future, against any person, firm or corporation for Medicaid benefits provided
to the recipient by the Division of Medicaid for injuries, disease or sickness
caused or suffered under circumstances creating a cause of action in favor of
the recipient against any such person, firm or corporation as set out in
Section 43-13-125. The recipient shall be deemed, without the necessity of
signing any document, to have appointed the * * * Office of Medicaid
Inspector General as his or her true and lawful attorney-in-fact in his or
her name, place and stead in collecting any and all amounts due and owing for
medical expenses paid by the Division of Medicaid against such person, firm or
corporation.
(2) Whenever a provider of
medical services or the * * * Division of Medicaid Office of Medicaid Inspector General
submits claims to an insurer on behalf of a Medicaid recipient for whom an
assignment of rights has been received, or whose rights have been assigned by
the operation of law, the insurer must respond within sixty (60) days of
receipt of a claim by forwarding payment or issuing a notice of denial directly
to the submitter of the claim. The failure of the insuring entity to comply
with the provisions of this section shall subject the insuring entity to
recourse by the * * * Office of Medicaid Inspector General in
accordance with the provision of Section 43-13-315. The Division of Medicaid or
the Office of Medicaid Inspector General shall be authorized to endorse any
and all, including, but not limited to, multi-payee checks, drafts, money
orders or other negotiable instruments representing Medicaid payment recoveries
that are received by the Division of Medicaid or the Office of Medicaid
Inspector General.
(3) Court orders or
agreements for medical support shall direct such payments to the * * * Office of Medicaid
Inspector General, which shall be authorized to endorse any and all checks,
drafts, money orders or other negotiable instruments representing medical
support payments which are received. Any designated medical support funds
received by the State Department of Human Services or through its local county
departments shall be paid over to the * * * Office of Medicaid Inspector General. When medical
support for a Medicaid recipient is available through an absent parent or
custodial parent, the insuring entity shall direct the medical support payment(s)
to the provider of medical services or to the * * * Office of Medicaid
Inspector General.
SECTION 26. Section 43-13-307, Mississippi Code of 1972, is amended as follows:
43-13-307. Any applicant or
recipient, inclusive of the grantee relative of a dependent child who refuses
to cooperate with or to provide reasonable assistance to the Division of
Medicaid or the Office of
Medicaid Inspector General against a liable third party in accordance with
Section 43-13-125, Mississippi Code of 1972, or fails to pay over to the
Division of Medicaid or the Office of
Medicaid Inspector General third-party payments as provided in this
article, or fails or refuses to cooperate with the local county department of * * * human services shall not
be eligible for Medicaid benefits under the Mississippi Medicaid Law.
SECTION 27. Section 43-13-311, Mississippi Code of 1972, is amended as follows:
43-13-311. Providers of
medical services participating in the Medicaid program shall, in submitting
claims for the payment of services, identify, if known to the provider, the
third party or parties who are or may be liable for the injuries, disease, or
sickness of the recipient and shall cooperate with the * * * Office of Medicaid
Inspector General in the recoupment of the payments from such third party
or parties.
Any provider submitting
claims for the payment of medical services by the Division of Medicaid, who,
having knowledge of the liability or potential liability of a third party for
the injuries, disease, or sickness of the recipient, fails to identify such
third party or parties to the * * *
Office of Medicaid Inspector General or who fails to cooperate with the * * * Office of Medicaid
Inspector General in the recoupment of * * * any payments from such third party
or parties shall be liable to the * * * Office of Medicaid
Inspector General to the extent of the payments made to the provider for
medical assistance or services rendered to a recipient to which the third party
or parties is, are, or may be liable.
SECTION 28. Section 43-13-313, Mississippi Code of 1972, is amended as follows:
43-13-313. (1) In furnishing medical information to the recipient, his attorney or any other party upon written authorization, a provider participating in the Medicaid program shall denote in writing on such medical information that the patient is a Medicaid recipient and his Medicaid identification number, and if the medical charges have been paid by the Division of Medicaid, the provider shall, in addition, write or cause to be stamped or printed thereon "paid by the Division of Medicaid." If the provider has not been paid by the Division of Medicaid but seeks to bill the Division of Medicaid for medical services rendered the recipient, the provider shall denote in writing on such medical information the same information as herein provided and shall advise the recipient, his attorney, or any other party upon written authorization that it intends to bill the Division of Medicaid for medical services rendered the recipient.
(2) At the time the
requested medical information is furnished to the recipient, his attorney, or
other party, including medical information produced under court order,
subpoena, interrogatory or deposition, the participating provider shall
immediately direct a copy of the medical information so furnished or produced
to the Division of Medicaid and the Office of Medicaid Inspector General
along with the authorization for the production of such information. The
failure of the provider of medical services to comply with the provisions of
this section shall subject the provider to recourse by the * * * Office of Medicaid
Inspector General in accordance with the provisions of Section 43-13-311.
SECTION 29. Section 43-13-315, Mississippi Code of 1972, is amended as follows:
43-13-315. Any person,
firm, or corporation who fails or refuses to honor the subrogation rights of
the * * * Office of Medicaid Inspector General and,
specifically, without limitation, hospital insurance and indemnity benefits
accruing to a recipient, after advanced written notice and a reasonable
opportunity of responding, shall be liable to the * * * Office of Medicaid Inspector
General, should suit become necessary by the * * * Office of Medicaid Inspector
General and liability be established, for double the amount of Medicaid
benefits paid by the Division of Medicaid or double the amount of the insurance
policy limits, whichever is the lesser, inclusive of the assessment of a
reasonable attorney's fee and all costs of court.
SECTION 30. Section 43-13-317, Mississippi Code of 1972, is amended as follows:
43-13-317. (1) The * * * Office of Medicaid Inspector
General shall be noticed as an identified creditor against the estate of
any deceased Medicaid recipient under Section 91-7-145.
(2) In accordance with
applicable federal law and rules and regulations, including those under Title
XIX of the federal Social Security Act, the * * * Office of Medicaid Inspector
General may seek recovery of payments for nursing facility services, home-
and community-based services and related hospital and prescription drug
services from the estate of a deceased Medicaid recipient who was fifty-five
(55) years of age or older when he or she received the assistance. The claim
shall be waived by the * * *
Office of Medicaid Inspector General (a) if there is a surviving spouse;
or (b) if there is a surviving dependent who is under the age of twenty-one
(21) years or who is blind or disabled; or (c) as provided by federal law and
regulation, if it is determined by the * * * Office of Medicaid Inspector
General or by court order that there is undue hardship.
SECTION 31. Section 25-3-39, Mississippi Code of 1972, is amended as follows:
25-3-39. (1) (a) Except as otherwise provided in this section, no public officer, public employee, administrator, or executive head of any arm or agency of the state, in the executive branch of government, shall be paid a salary or compensation, directly or indirectly, greater than one hundred fifty percent (150%) of the salary fixed in Section 25-3-31 for the Governor, nor shall the salary of any public officer, public employee, administrator, or executive head of any arm or agency of the state, in the executive branch of government, be supplemented with any funds from any source, including federal or private funds. Such salaries shall be completely paid by the state. All academic officials, members of the teaching staffs and employees of the state institutions of higher learning, the Mississippi Community College Board, and community and junior colleges, and licensed physicians who are public employees, shall be exempt from this subsection. All professional employees who hold a bachelor's degree or more advanced degree from an accredited four-year college or university or a certificate or license issued by a state licensing board, commission or agency and who are employed by the Department of Mental Health shall be exempt from this subsection if the State Personnel Board approves the exemption. The Commissioner of Child Protection Services is exempt from this subsection. From and after July 1, 2018, the Executive Director of the Public Employees' Retirement System and the Chief Investment Officer of the Public Employees' Retirement System shall be exempt from this subsection.
(b) The Governor shall fix the annual salary of the Executive Director of the Mississippi Development Authority, the annual salary of the Commissioner of Child Protection Services, the annual salary of the Medicaid Inspector General and the annual salary of the Chief of Staff of the Governor's Office. The salary of the Governor's Chief of Staff shall not be greater than one hundred fifty percent (150%) of the salary of the Governor and shall be completely paid by the state without supplementation from another source. The salary of the Executive Director of the Mississippi Development Authority may be greater than one hundred fifty percent (150%) of the salary of the Governor and may be supplemented with funds from any source, including federal or private funds; however, any state funds used to pay the salary of the Executive Director of the Mississippi Development Authority shall not exceed one hundred fifty percent (150%) of the salary of the Governor. If the executive director's salary is supplemented with private funds, the Mississippi Development Authority shall publish on its website the amount of the supplement and the name of the donor of the private funds.
(2) No public officer, employee or administrator shall be paid a salary or compensation, directly or indirectly, in excess of the salary authorized to be paid the executive head of the state agency or department in which he is employed. The State Personnel Board, based upon its findings of fact, may exempt physicians and actuaries from this subsection when the acquisition of such professional services is precluded based on the prevailing wage in the relevant labor market. The Medicaid Inspector General is exempt from this subsection (2).
(3) The executive head of any state agency or department appointed by the Governor, in such executive head's discretion, may waive all or any portion of the salary or compensation lawfully established for the position.
SECTION 32. Section 27-104-7, Mississippi Code of 1972, is amended as follows:
27-104-7. (1) (a) There is created the Public Procurement Review Board, which shall be reconstituted on January 1, 2018, and shall be composed of the following members:
(i) Three (3) individuals appointed by the Governor with the advice and consent of the Senate;
(ii) Two (2) individuals appointed by the Lieutenant Governor with the advice and consent of the Senate; and
(iii) The Executive Director of the Department of Finance and Administration, serving as an ex officio and nonvoting member.
(b) The initial terms of each appointee shall be as follows:
(i) One (1) member appointed by the Governor to serve for a term ending on June 30, 2019;
(ii) One (1) member appointed by the Governor to serve for a term ending on June 30, 2020;
(iii) One (1) member appointed by the Governor to serve for a term ending on June 30, 2021;
(iv) One (1) member appointed by the Lieutenant Governor to serve for a term ending on June 30, 2019; and
(v) One (1) member appointed by the Lieutenant Governor to serve for a term ending on June 30, 2020.
After the expiration of the initial terms, all appointed members' terms shall be for a period of four (4) years from the expiration date of the previous term, and until such time as the member's successor is duly appointed and qualified.
(c) When appointing members to the Public Procurement Review Board, the Governor and Lieutenant Governor shall take into consideration persons who possess at least five (5) years of management experience in general business, health care or finance for an organization, corporation or other public or private entity. Any person, or any employee or owner of a company, who receives any grants, procurements or contracts that are subject to approval under this section shall not be appointed to the Public Procurement Review Board. Any person, or any employee or owner of a company, who is a principal of the source providing a personal or professional service shall not be appointed to the Public Procurement Review Board if the principal owns or controls a greater than five percent (5%) interest or has an ownership value of One Million Dollars ($1,000,000.00) in the source's business, whichever is smaller. No member shall be an officer or employee of the State of Mississippi while serving as a voting member on the Public Procurement Review Board.
(d) Members of the Public Procurement Review Board shall be entitled to per diem as authorized by Section 25-3-69 and travel reimbursement as authorized by Section 25-3-41.
(e) The members of the Public Procurement Review Board shall elect a chair from among the membership, and he or she shall preside over the meetings of the board. The board shall annually elect a vice chair, who shall serve in the absence of the chair. No business shall be transacted, including adoption of rules of procedure, without the presence of a quorum of the board. Three (3) members shall be a quorum. No action shall be valid unless approved by a majority of the members present and voting, entered upon the minutes of the board and signed by the chair. Necessary clerical and administrative support for the board shall be provided by the Department of Finance and Administration. Minutes shall be kept of the proceedings of each meeting, copies of which shall be filed on a monthly basis with the chairs of the Accountability, Efficiency and Transparency Committees of the Senate and House of Representatives and the chairs of the Appropriations Committees of the Senate and House of Representatives.
(2) The Public Procurement Review Board shall have the following powers and responsibilities:
(a) Approve all purchasing regulations governing the purchase or lease by any agency, as defined in Section 31-7-1, of commodities and equipment, except computer equipment acquired pursuant to Sections 25-53-1 through 25-53-29;
(b) Adopt regulations governing the approval of contracts let for the construction and maintenance of state buildings and other state facilities as well as related contracts for architectural and engineering services.
The provisions of this paragraph (b) shall not apply to such contracts involving buildings and other facilities of state institutions of higher learning which are self-administered as provided under this paragraph (b) or Section 37-101-15(m);
(c) Adopt regulations governing any lease or rental agreement by any state agency or department, including any state agency financed entirely by federal funds, for space outside the buildings under the jurisdiction of the Department of Finance and Administration. These regulations shall require each agency requesting to lease such space to provide the following information that shall be published by the Department of Finance and Administration on its website: the agency to lease the space; the terms of the lease; the approximate square feet to be leased; the use for the space; a description of a suitable space; the general location desired for the leased space; the contact information for a person from the agency; the deadline date for the agency to have received a lease proposal; any other specific terms or conditions of the agency; and any other information deemed appropriate by the Division of Real Property Management of the Department of Finance and Administration or the Public Procurement Review Board. The information shall be provided sufficiently in advance of the time the space is needed to allow the Division of Real Property Management of the Department of Finance and Administration to review and preapprove the lease before the time for advertisement begins;
(d) Adopt, in its discretion, regulations to set aside at least five percent (5%) of anticipated annual expenditures for the purchase of commodities from minority businesses; however, all such set-aside purchases shall comply with all purchasing regulations promulgated by the department and shall be subject to all bid requirements. Set-aside purchases for which competitive bids are required shall be made from the lowest and best minority business bidder; however, if no minority bid is available or if the minority bid is more than two percent (2%) higher than the lowest bid, then bids shall be accepted and awarded to the lowest and best bidder. However, the provisions in this paragraph shall not be construed to prohibit the rejection of a bid when only one (1) bid is received. Such rejection shall be placed in the minutes. For the purposes of this paragraph, the term "minority business" means a business which is owned by a person who is a citizen or lawful permanent resident of the United States and who is:
(i) Black: having origins in any of the black racial groups of Africa;
(ii) Hispanic: of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin regardless of race;
(iii) Asian-American: having origins in any of the original people of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands;
(iv) American Indian or Alaskan Native: having origins in any of the original people of North America; or
(v) Female;
(e) In consultation with and approval by the Chairs of the Senate and House Public Property Committees, approve leases, for a term not to exceed eighteen (18) months, entered into by state agencies for the purpose of providing parking arrangements for state employees who work in the Woolfolk Building, the Carroll Gartin Justice Building or the Walter Sillers Office Building;
(f) Promulgate rules
and regulations governing the solicitation and selection of contractual
services personnel including personal and professional services contracts for
any form of consulting, policy analysis, public relations, marketing, public
affairs, legislative advocacy services or any other contract that the board
deems appropriate for oversight, with the exception of any personal service
contracts entered into by any agency that employs only nonstate service
employees as defined in Section 25-9-107(c), any personal service contracts
entered into for computer or information technology-related services governed
by the Mississippi Department of Information Technology Services, any personal
service contracts entered into by the individual state institutions of higher
learning, any personal service contracts entered into by the Mississippi Department
of Transportation, any personal service contracts entered into by the
Department of Human Services through June 30, 2019, which the Executive
Director of the Department of Human Services determines would be useful in
establishing and operating the Department of Child Protection Services, any
personal service contracts entered into by the Department of Child Protection
Services through June 30, 2019, any personal service contracts entered into
by the Division of Medicaid through June 30, 2022, which the Executive Director
of the Division of Medicaid determines would be useful in establishing and
operating the Office of Medicaid Inspector General, any personal contracts
entered into by the Office of Medicaid Inspector General through June 30, 2022,
any contracts for entertainers and/or performers at the Mississippi State
Fairgrounds entered into by the Mississippi Fair Commission, any contracts
entered into by the Department of Finance and Administration when procuring
aircraft maintenance, parts, equipment and/or services, and any contract for
attorney, accountant, actuary auditor, architect, engineer, and utility rate
expert services. Any such rules and regulations shall provide for maintaining
continuous internal audit covering the activities of such agency affecting its
revenue and expenditures as required under Section 7-7-3(6)(d). Any rules and
regulation changes related to personal and professional services contracts that
the Public Procurement Review Board may propose shall be submitted to the Chairs
of the Accountability, Efficiency and Transparency Committees of the Senate and
House of Representatives and the Chairs of the Appropriation Committees of the
Senate and House of Representatives at least fifteen (15) days before the board
votes on the proposed changes, and those rules and regulation changes, if
adopted, shall be promulgated in accordance with the Mississippi Administrative
Procedures * * *
Law, Section 25-43-1.101, et seq.;
(g) Approve all personal and professional services contracts involving the expenditures of funds in excess of Seventy-five Thousand Dollars ($75,000.00), except as provided in paragraph (f) of this subsection (2) and in subsection (8);
(h) Develop mandatory standards with respect to contractual services personnel that require invitations for public bid, requests for proposals, record keeping and financial responsibility of contractors. The Public Procurement Review Board shall, unless exempted under this paragraph (h) or under paragraph (i) or (o) of this subsection (2), require the agency involved to submit the procurement to a competitive procurement process, and may reserve the right to reject any or all resulting procurements;
(i) Prescribe certain circumstances by which agency heads may enter into contracts for personal and professional services without receiving prior approval from the Public Procurement Review Board. The Public Procurement Review Board may establish a preapproved list of providers of various personal and professional services for set prices with which state agencies may contract without bidding or prior approval from the board;
(i) Agency requirements may be fulfilled by procuring services performed incident to the state's own programs. The agency head shall determine in writing whether the price represents a fair market value for the services. When the procurements are made from other governmental entities, the private sector need not be solicited; however, these contracts shall still be submitted for approval to the Public Procurement Review Board.
(ii) Contracts between two (2) state agencies, both under Public Procurement Review Board purview, shall not require Public Procurement Review Board approval. However, the contracts shall still be entered into the enterprise resource planning system.
(j) Provide standards for the issuance of requests for proposals, the evaluation of proposals received, consideration of costs and quality of services proposed, contract negotiations, the administrative monitoring of contract performance by the agency and successful steps in terminating a contract;
(k) Present recommendations for governmental privatization and to evaluate privatization proposals submitted by any state agency;
(l) Authorize personal and professional service contracts to be effective for more than one (1) year provided a funding condition is included in any such multiple year contract, except the State Board of Education, which shall have the authority to enter into contractual agreements for student assessment for a period up to ten (10) years. The State Board of Education shall procure these services in accordance with the Public Procurement Review Board procurement regulations;
(m) Request the State Auditor to conduct a performance audit on any personal or professional service contract;
(n) Prepare an annual report to the Legislature concerning the issuance of personal and professional services contracts during the previous year, collecting any necessary information from state agencies in making such report;
(o) Develop and implement the following standards and procedures for the approval of any sole source contract for personal and professional services regardless of the value of the procurement:
(i) For the purposes of this paragraph (o), the term "sole source" means only one (1) source is available that can provide the required personal or professional service.
(ii) An agency that has been issued a binding, valid court order mandating that a particular source or provider must be used for the required service must include a copy of the applicable court order in all future sole source contract reviews for the particular personal or professional service referenced in the court order.
(iii) Any agency alleging to have a sole source for any personal or professional service, other than those exempted under paragraph (f) of this subsection (2) and subsection (8), shall publish on the procurement portal website established by Sections 25-53-151 and 27-104-165, for at least fourteen (14) days, the terms of the proposed contract for those services. In addition, the publication shall include, but is not limited to, the following information:
1. The personal or professional service offered in the contract;
2. An explanation of why the personal or professional service is the only one that can meet the needs of the agency;
3. An explanation of why the source is the only person or entity that can provide the required personal or professional service;
4. An explanation of why the amount to be expended for the personal or professional service is reasonable; and
5. The efforts that the agency went through to obtain the best possible price for the personal or professional service.
(iv) If any person or entity objects and proposes that the personal or professional service published under subparagraph (iii) of this paragraph (o) is not a sole source service and can be provided by another person or entity, then the objecting person or entity shall notify the Public Procurement Review Board and the agency that published the proposed sole source contract with a detailed explanation of why the personal or professional service is not a sole source service.
(v) 1. If the agency determines after review that the personal or professional service in the proposed sole source contract can be provided by another person or entity, then the agency must withdraw the sole source contract publication from the procurement portal website and submit the procurement of the personal or professional service to an advertised competitive bid or selection process.
2. If the agency determines after review that there is only one (1) source for the required personal or professional service, then the agency may appeal to the Public Procurement Review Board. The agency has the burden of proving that the personal or professional service is only provided by one (1) source.
3. If the Public Procurement Review Board has any reasonable doubt as to whether the personal or professional service can only be provided by one (1) source, then the agency must submit the procurement of the personal or professional service to an advertised competitive bid or selection process. No action taken by the Public Procurement Review Board in this appeal process shall be valid unless approved by a majority of the members of the Public Procurement Review Board present and voting.
(vi) The Public Procurement Review Board shall prepare and submit a quarterly report to the House of Representatives and Senate Accountability, Efficiency and Transparency Committees that details the sole source contracts presented to the Public Procurement Review Board and the reasons that the Public Procurement Review Board approved or rejected each contract. These quarterly reports shall also include the documentation and memoranda required in subsection (4) of this section. An agency that submitted a sole source contract shall be prepared to explain the sole source contract to each committee by December 15 of each year upon request by the committee.
(p) Assess any fines and administrative penalties provided for in Sections 31-7-401 through 31-7-423.
(3) All submissions shall be made sufficiently in advance of each monthly meeting of the Public Procurement Review Board as prescribed by the Public Procurement Review Board. If the Public Procurement Review Board rejects any contract submitted for review or approval, the Public Procurement Review Board shall clearly set out the reasons for its action, including, but not limited to, the policy that the agency has violated in its submitted contract and any corrective actions that the agency may take to amend the contract to comply with the rules and regulations of the Public Procurement Review Board.
(4) All sole source contracts for personal and professional services awarded by state agencies, other than those exempted under Section 27-104-7(2)(f) and (8), whether approved by an agency head or the Public Procurement Review Board, shall contain in the procurement file a written determination for the approval, using a request form furnished by the Public Procurement Review Board. The written determination shall document the basis for the determination, including any market analysis conducted in order to ensure that the service required was practicably available from only one (1) source. A memorandum shall accompany the request form and address the following four (4) points:
(a) Explanation of why this service is the only service that can meet the needs of the purchasing agency;
(b) Explanation of why this vendor is the only practicably available source from which to obtain this service;
(c) Explanation of why the price is considered reasonable; and
(d) Description of the efforts that were made to conduct a noncompetitive negotiation to get the best possible price for the taxpayers.
(5) In conjunction with the State Personnel Board, the Public Procurement Review Board shall develop and promulgate rules and regulations to define the allowable legal relationship between contract employees and the contracting departments, agencies and institutions of state government under the jurisdiction of the State Personnel Board, in compliance with the applicable rules and regulations of the federal Internal Revenue Service (IRS) for federal employment tax purposes. Under these regulations, the usual common law rules are applicable to determine and require that such worker is an independent contractor and not an employee, requiring evidence of lawful behavioral control, lawful financial control and lawful relationship of the parties. Any state department, agency or institution shall only be authorized to contract for personnel services in compliance with those regulations.
(6) No member of the Public Procurement Review Board shall use his or her official authority or influence to coerce, by threat of discharge from employment, or otherwise, the purchase of commodities, the contracting for personal or professional services, or the contracting for public construction under this chapter.
(7) Notwithstanding any other laws or rules to the contrary, the provisions of subsection (2) of this section shall not be applicable to the Mississippi State Port Authority at Gulfport.
(8) Nothing in this section shall impair or limit the authority of the Board of Trustees of the Public Employees' Retirement System to enter into any personal or professional services contracts directly related to their constitutional obligation to manage the trust funds, including, but not limited to, actuarial, custodial banks, cash management, investment consultant and investment management contracts.
(9) Notwithstanding the exemption of personal and professional services contracts entered into by the Department of Human Services and personal and professional services contracts entered into by the Department of Child Protection Services from the provisions of this section under subsection (2)(f), before the Department of Human Services or the Department of Child Protection Services may enter into a personal or professional service contract, the department(s) shall give notice of the proposed personal or professional service contract to the Public Procurement Review Board for any recommendations by the board. Upon receipt of the notice, the board shall post the notice on its website and on the procurement portal website established by Sections 25-53-151 and 27-104-165. If the board does not respond to the department(s) within seven (7) calendar days after receiving the notice, the department(s) may enter the proposed personal or professional service contract. If the board responds to the department(s) within seven (7) calendar days, then the board has seven (7) calendar days from the date of its initial response to provide any additional recommendations. After the end of the second seven-day period, the department(s) may enter the proposed personal or professional service contract. The board is not authorized to disapprove any proposed personal or professional services contracts. This subsection shall stand repealed on July 1, 2022.
SECTION 33. Section 25-9-127, Mississippi Code of 1972, is amended as follows:
25-9-127. (1) No employee of any department, agency or institution who is included under this chapter or hereafter included under its authority, and who is subject to the rules and regulations prescribed by the state personnel system, may be dismissed or otherwise adversely affected as to compensation or employment status except for inefficiency or other good cause, and after written notice and hearing within the department, agency or institution as shall be specified in the rules and regulations of the State Personnel Board complying with due process of law; and any employee who has by written notice of dismissal or action adversely affecting his compensation or employment status shall, on hearing and on any appeal of any decision made in such action, be required to furnish evidence that the reasons stated in the notice of dismissal or action adversely affecting his compensation or employment status are not true or are not sufficient grounds for the action taken; provided, however, that this provision shall not apply (a) to persons separated from any department, agency or institution due to curtailment of funds or reduction in staff when such separation is in accordance with rules and regulations of the state personnel system; (b) during the probationary period of state service of twelve (12) months; and (c) to an executive officer of any state agency who serves at the will and pleasure of the Governor, board, commission or other appointing authority.
(2) The operation of a state-owned motor vehicle without a valid Mississippi driver's license by an employee of any department, agency or institution that is included under this chapter and that is subject to the rules and regulations of the state personnel system shall constitute good cause for dismissal of such person from employment.
(3) Beginning July 1, 1999, every male between the ages of eighteen (18) and twenty-six (26) who is required to register under the federal Military Selective Service Act, 50 USCS App. 453, and who is an employee of the state shall not be promoted to any higher position of employment with the state until he submits to the person, commission, board or agency by which he is employed satisfactory documentation of his compliance with the draft registration requirements of the Military Selective Service Act. The documentation shall include a signed affirmation under penalty of perjury that the male employee has complied with the requirements of the Military Selective Service Act.
(4) For a period of two (2) years beginning July 1, 2014, the provisions of subsection (1) shall not apply to the personnel actions of the State Department of Education that are subject to the rules and regulations of the State Personnel Board, and all employees of the department shall be classified as nonstate service during that period. However, any employee hired after July 1, 2014, by the department shall meet the criteria of the State Personnel Board as it presently exists for employment. The State Superintendent of Public Education and the State Board of Education shall consult with the Office of the Attorney General before taking personnel actions authorized by this section to review those actions for compliance with applicable state and federal law.
It is not the intention or effect of this section to include any school attendance officer in any exemption from coverage under the State Personnel Board policy or regulations, including, but not limited to, termination and conditions of employment.
(5) (a) For a period of two (2) years beginning July 1, 2015, the provisions of subsection (1) shall not apply to the personnel actions of the Department of Corrections, and all employees of the department shall be classified as nonstate service during that period. However, any employee hired after July 1, 2015, by the department shall meet the criteria of the State Personnel Board as it presently exists for employment.
(b) Additionally, for a period of one (1) year beginning July 1, 2016, the personnel actions of the Commissioner of the Department of Corrections shall be exempt from State Personnel Board rules, regulations and procedures in order to give the commissioner flexibility in making an orderly, effective and timely reorganization and realignment of the department.
(c) The Commissioner of Corrections shall consult with the Office of the Attorney General before personnel actions authorized by this section to review those actions for compliance with applicable state and federal law.
(6) Through July 1, 2020, the provisions of subsection (1) of this section shall not apply to the personnel actions of the Department of Human Services that are subject to the rules and regulations of the State Personnel Board, and all employees of the department shall be classified as nonstate service during that period. Any employee hired on or after July 1, 2020, by the department shall meet the criteria of the State Personnel Board as it presently exists for employment. The Executive Director of Human Services shall consult with the Office of the Attorney General before taking personnel actions authorized by this section to review those actions for compliance with applicable state and federal law.
(7) Through July 1, 2020, the provisions of subsection (1) of this section shall not apply to the personnel actions of the Department of Child Protection Services that are subject to the rules and regulations of the State Personnel Board, and all employees of the department shall be classified as nonstate service during that period. Any employee hired on or after July 1, 2020, by the division shall meet the criteria of the State Personnel Board as it presently exists for employment. The Commissioner of Child Protection Services shall consult with the Office of the Attorney General before taking personnel actions authorized by this section to review those actions for compliance with applicable state and federal law.
(8) Through July 1, 2022, the provisions of subsection (1) of this section shall not apply to the personnel actions of the Office of Medicaid Inspector General that are subject to the rules and regulations of the State Personnel Board, and all employees of the Office of Medicaid Inspector General shall be classified as nonstate service during that period. Any employee hired on or after July 1, 2022, by the Office of Medicaid Inspector General shall meet the criteria of the State Personnel Board as it presently exists for employment. The Medicaid Inspector General shall consult with the Office of the Attorney General before taking personnel actions authorized by this section to review those actions for compliance with applicable state and federal law.
( * * *9) Any state agency whose personnel
actions are exempted in this section from the rules, regulations and procedures
of the State Personnel Board shall file with the Lieutenant Governor, the
Speaker of the House of Representatives, and the members of the Senate and
House Accountability, Efficiency and Transparency Committees an annual report
no later than July 1, 2016, and each year thereafter while under the
exemption. Such annual report shall contain the following information:
(a) The number of current employees who received an increase in salary during the past fiscal year and the amount of the increase;
(b) The number of employees who were dismissed from the agency or otherwise adversely affected as to compensation or employment status during the past fiscal year, including a description of such adverse effects; and
(c) The number of new employees hired during the past fiscal year and the starting salaries of each new employee.
SECTION 34. This act shall take effect and be in force from and after July 1, 2020.
