2019 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 44 - Medicaid Fraud
Section 30-44-7 - Medicaid fraud; defined; investigation; penalties.
A. Medicaid fraud consists of:
(1) paying, soliciting, offering or receiving:
(a) a kickback or bribe in connection with the furnishing of treatment, services or goods for which payment is or may be made in whole or in part under the program, including an offer or promise to, or a solicitation or acceptance by, a health care official of anything of value with intent to influence a decision or commit a fraud affecting a state or federally funded or mandated managed health care plan;
(b) a rebate of a fee or charge made to a provider for referring a recipient to a provider;
(c) anything of value, intending to retain it and knowing it to be in excess of amounts authorized under the program, as a precondition of providing treatment, care, services or goods or as a requirement for continued provision of treatment, care, services or goods; or
(d) anything of value, intending to retain it and knowing it to be in excess of the rates established under the program for the provision of treatment, services or goods;
(2) providing with intent that a claim be relied upon for the expenditure of public money:
(a) treatment, services or goods that have not been ordered by a treating physician;
(b) treatment that is substantially inadequate when compared to generally recognized standards within the discipline or industry; or
(c) merchandise that has been adulterated, debased or mislabeled or is outdated;
(3) presenting or causing to be presented for allowance or payment with intent that a claim be relied upon for the expenditure of public money any false, fraudulent, excessive, multiple or incomplete claim for furnishing treatment, services or goods; or
(4) executing or conspiring to execute a plan or action to:
(a) defraud a state or federally funded or mandated managed health care plan in connection with the delivery of or payment for health care benefits, including engaging in any intentionally deceptive marketing practice in connection with proposing, offering, selling, soliciting or providing any health care service in a state or federally funded or mandated managed health care plan; or
(b) obtain by means of false or fraudulent representation or promise anything of value in connection with the delivery of or payment for health care benefits that are in whole or in part paid for or reimbursed or subsidized by a state or federally funded or mandated managed health care plan. This includes representations or statements of financial information, enrollment claims, demographic statistics, encounter data, health services available or rendered and the qualifications of persons rendering health care or ancillary services.
B. Except as otherwise provided for in this section regarding the payment of fines by an entity, whoever commits medicaid fraud as described in Paragraph (1) or (3) of Subsection A of this section is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
C. Except as otherwise provided for in this section regarding the payment of fines by an entity, whoever commits medicaid fraud as described in Paragraph (2) or (4) of Subsection A of this section when the value of the benefit, treatment, services or goods improperly provided is:
(1) not more than one hundred dollars ($100) is guilty of a petty misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978;
(2) more than one hundred dollars ($100) but not more than two hundred fifty dollars ($250) is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978;
(3) more than two hundred fifty dollars ($250) but not more than two thousand five hundred dollars ($2,500) is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978;
(4) more than two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000) shall be guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and
(5) more than twenty thousand dollars ($20,000) shall be guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
D. Except as otherwise provided for in this section regarding the payment of fines by an entity, whoever commits medicaid fraud when the fraud results in physical harm or psychological harm to a recipient is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
E. Except as otherwise provided for in this section regarding the payment of fines by an entity, whoever commits medicaid fraud when the fraud results in great physical harm or great psychological harm to a recipient is guilty of a third degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
F. Except as otherwise provided for in this section regarding the payment of fines by an entity, whoever commits medicaid fraud when the fraud results in death to a recipient is guilty of a second degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
G. If the person who commits medicaid fraud is an entity rather than an individual, the entity shall be subject to a fine of not more than fifty thousand dollars ($50,000) for each misdemeanor and not more than two hundred fifty thousand dollars ($250,000) for each felony.
H. The unit shall coordinate with the human services department, department of health and children, youth and families department to develop a joint protocol establishing responsibilities and procedures, including prompt and appropriate referrals and necessary action regarding allegations of program fraud, to ensure prompt investigation of suspected fraud upon the medicaid program by any provider. These departments shall participate in the joint protocol and enter into a memorandum of understanding defining procedures for coordination of investigations of fraud by medicaid providers to eliminate duplication and fragmentation of resources. The memorandum of understanding shall further provide procedures for reporting to the legislative finance committee the results of all investigations every calendar quarter. The unit shall report to the legislative finance committee a detailed disposition of recoveries and distribution of proceeds every calendar quarter.
History: Laws 1989, ch. 286, § 7; 1997, ch. 98, § 3; 2003, ch. 291, § 1.
ANNOTATIONSCross references. — For the children, youth and families department, see 9-2A-1 NMSA 1978 et seq.
For the legislative finance committee, see 2-5-1 NMSA 1978.
The 2003 amendment, effective July 1, 2003, added Subsection H.
The 1997 amendment, effective June 20, 1997, in Subsection A, added the language beginning "including an offer or promise to" at the end of Subparagraph (1)(a), added Paragraph (4), and made related stylistic changes throughout the subsection; added "Except as otherwise provided for in this section regarding the payment of fines by an entity" at the beginning of Subsection B; in Subsection C, added "Except as otherwise provided for in this section regarding the payment of fines by an entity" at the beginning of the introductory language, added the language beginning "and shall be sentenced" at the end of Paragraph (1), inserted "dollars" in Paragraph (2), and substituted "Section 31-18-15 NMSA 1978" for "Section 31-19-1 NMSA 1978" in Paragraph (3); added "Except as otherwise provided for in this section regarding the payment of fines by an entity" at the beginning of Subsections D and E; and added Subsections F and G.
Materiality element of Medicaid fraud. — Section 30-44-7(A)(3) imposes a materiality element, which requires that the false or fraudulent certification be integral to the government's payment decision; regulatory deficiencies that are not material to government payment do not support a cause of action of Medicaid fraud under the Medicaid Fraud Act. State ex rel. King v. Behavioral Home Care, Inc., 2015-NMCA-035, cert. granted, 2014-NMCERT-008.
Where Medicaid provider failed to comply with criminal history screening requirements of its caregivers, the state could not allege that the government could withhold payment solely because the unscreened caregivers had disqualifying criminal convictions in their histories, and therefore the fact that the Medicaid provider violated the statutory hiring requirements does not create a violation of a condition of Medicaid payment that supports a Medicaid fraud cause of action under the Medicaid Fraud Act. State ex rel. King v. Behavioral Home Care, Inc., 2015-NMCA-035, cert. granted, 2014-NMCERT-008.
Medicaid fraud not a lesser included offense of tampering with public records. — Defendant charged with tampering with public records based on his sale of medicaid cards to undercover agents was not entitled to an instruction on medicaid fraud as a lesser included offense. State v. Dartez, 1998-NMCA-009, 124 N.M. 455, 952 P.2d 450, cert. denied, 124 N.M. 311, 950 P.2d 284.
