Whistleblower Litigation

Texas Medicaid Fraud Prevention Act

TEXAS MEDICAID FRAUD PREVENTION ACT
(TEX. HUM. RES. CODE ANN. 
§§ 32.039; 36.001—13.117 & 
TEX. GOV’T CODE ANN 531.101)

§ 32.039. Damages and Penalties

          (a) In this section:

                    (1) “Claim” means an application for payment of health care services under Title XIX of the federal Social Security Act that is submitted by a person who is under a contract or provider agreement with the department.

                    (1-a) “Inducement” includes a service, cash in any amount, entertainment, or any item of value.

                    (2) “Managed care organization” means any entity or person that is authorized or otherwise permitted by law to arrange for or provide a managed care plan.

                    (3) “Managed care plan” means a plan under which a person undertakes to provide, arrange for, pay for, or reimburse any part of the cost of any health care service. A part of the plan must consist of arranging for or providing health care services as distinguished from indemnification against the cost of those services on a prepaid basis through insurance or otherwise. The term does not include a plan that indemnifies a person for the cost of health care services through insurance.

                    (4) A person “should know” or “should have known” information to be false if the person acts in deliberate ignorance of the truth or falsity of the information or in reckless disregard of the truth or falsity of the information, and proof of the person’s specific intent to defraud is not required.

          (b) A person commits a violation if the person:

                    (1) presents or causes to be presented to the department a claim that contains a statement or representation the person knows or should know to be false;

                    (1-a) engages in conduct that violates Section 102.001, Occupations Code;

                    (1-b) solicits or receives, directly or indirectly, overtly or covertly any remuneration, including any kickback, bribe, or rebate, in cash or in kind for referring an individual to a person for the furnishing of, or for arranging the furnishing of, any item or service for which payment may be made, in whole or in part, under the medical assistance program, provided that this subdivision does not prohibit the referral of a patient to another practitioner within a multispecialty group or university medical services research and development plan (practice plan) for medically necessary services;

                    (1-c) solicits or receives, directly or indirectly, overtly or covertly any remuneration, including any kickback, bribe, or rebate, in cash or in kind for purchasing, leasing, or ordering, or arranging for or recommending the purchasing, leasing, or ordering of, any good, facility, service, or item for which payment may be made, in whole or in part, under the medical assistance program;

                    (1-d) offers or pays, directly or indirectly, overtly or covertly any remuneration, including any kickback, bribe, or rebate, in cash or in kind to induce a person to refer an individual to another person for the furnishing of, or for arranging the furnishing of, any item or service for which payment may be made, in whole or in part, under the medical assistance program, provided that this subdivision does not prohibit the referral of a patient to another practitioner within a multispecialty group or university medical services research and development plan (practice plan) for medically necessary services;

                    (1-e) offers or pays, directly or indirectly, overtly or covertly any remuneration, including any kickback, bribe, or rebate, in cash or in kind to induce a person to purchase, lease, or order, or arrange for or recommend the purchase, lease, or order of, any good, facility, service, or item for which payment may be made, in whole or in part, under the medical assistance program;

                    (1-f) provides, offers, or receives an inducement in a manner or for a purpose not otherwise prohibited by this section or Section 102.001, Occupations Code, to or from a person, including a recipient, provider, employee or agent of a provider, third-party vendor, or public servant, for the purpose of influencing or being influenced in a decision regarding:

                              (A) selection of a provider or receipt of a good or service under the medical assistance program;

                              (B) the use of goods or services provided under the medical assistance program; or

                              (C) the inclusion or exclusion of goods or services available under the medical assistance program; or

                    (2) is a managed care organization that contracts with the department to provide or arrange to provide health care benefits or services to individuals eligible for medical assistance and:

                              (A) fails to provide to an individual a health care benefit or service that the organization is required to provide under the contract with the department;

                              (B) fails to provide to the department information required to be provided by law, department rule, or contractual provision;

                              (C) engages in a fraudulent activity in connection with the enrollment in the organization’s managed care plan of an individual eligible for medical assistance or in connection with marketing the organization’s services to an individual eligible for medical assistance; or

                              (D) engages in actions that indicate a pattern of:

                                        (i) wrongful denial of payment for a health care benefit or service that the organization is required to provide under the contract with the department; or

                                        (ii) wrongful delay of at least 45 days or a longer period specified in the contract with the department, not to exceed 60 days, in making payment for a health care benefit or service that the organization is required to provide under the contract with the department.

          (c) A person who commits a violation under Subsection (b) is liable to the department for:

                    (1) the amount paid, if any, as a result of the violation and interest on that amount determined at the rate provided by law for legal judgments and accruing from the date on which the payment was made; and

                    (2) payment of an administrative penalty of an amount not to exceed twice the amount paid, if any, as a result of the violation, plus an amount:

                              (A) not less than $ 5,000 or more than $ 15,000 for each violation that results in injury to an elderly person, as defined by Section 48.002(1), a disabled person, as defined by Section 48.002(8)(A), or a person younger than 18 years of age; or

                              (B) not more than $ 10,000 for each violation that does not result in injury to a person described by Paragraph (A).

          (d) Unless the provider submitted information to the department for use in preparing a voucher that the provider knew or should have known was false or failed to correct information that the provider knew or should have known was false when provided an opportunity to do so, this section does not apply to a claim based on the voucher if the department calculated and printed the amount of the claim on the voucher and then submitted the voucher to the provider for the provider’s signature. In addition, the provider’s signature on the voucher does not constitute fraud. The department shall adopt rules that establish a grace period during which errors contained in a voucher prepared by the department may be corrected without penalty to the provider.

          (e) In determining the amount of the penalty to be assessed under Subsection (c)(2), the department shall consider:

                    (1) the seriousness of the violation;

                    (2) whether the person had previously committed a violation; and

                    (3) the amount necessary to deter the person from committing future violations.

          (f) If after an examination of the facts the department concludes that the person committed a violation, the department may issue a preliminary report stating the facts on which it based its conclusion, recommending that an administrative penalty under this section be imposed and recommending the amount of the proposed penalty.

          (g) The department shall give written notice of the report to the person charged with committing the violation. The notice must include a brief summary of the facts, a statement of the amount of the recommended penalty, and a statement of the person’s right to an informal review of the alleged violation, the amount of the penalty, or both the alleged violation and the amount of the penalty.

          (h) Not later than the 10th day after the date on which the person charged with committing the violation receives the notice, the person may either give the department written consent to the report, including the recommended penalty, or make a written request for an informal review by the department.

          (i) If the person charged with committing the violation consents to the penalty recommended by the department or fails to timely request an informal review, the department shall assess the penalty. The department shall give the person written notice of its action. The person shall pay the penalty not later than the 30th day after the date on which the person receives the notice.

          (j) If the person charged with committing the violation requests an informal review as provided by Subsection (h), the department shall conduct the review. The department shall give the person written notice of the results of the review.

          (k) Not later than the 10th day after the date on which the person charged with committing the violation receives the notice prescribed by Subsection (j), the person may make to the department a written request for a hearing. The hearing must be conducted in accordance with Chapter 2001, Government Code.

          (l) If, after informal review, a person who has been ordered to pay a penalty fails to request a formal hearing in a timely manner, the department shall assess the penalty. The department shall give the person written notice of its action. The person shall pay the penalty not later than the 30th day after the date on which the person receives the notice.

          (m) Within 30 days after the date on which the board’s order issued after a hearing under Subsection (k) becomes final as provided by Section 2001.144, Government Code, the person shall:

                    (1) pay the amount of the penalty;

                    (2) pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; or

                    (3) without paying the amount of the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

          (n) A person who acts under Subsection (m)(3) within the 30-day period may:

                    (1) stay enforcement of the penalty by:

                              (A) paying the amount of the penalty to the court for placement in an escrow account; or

                              (B) giving to the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the department’s order is final; or

                    (2) request the court to stay enforcement of the penalty by:

                              (A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and

                              (B) giving a copy of the affidavit to the commissioner by certified mail.

          (o) If the commissioner receives a copy of an affidavit under Subsection (n)(2), the commissioner may file with the court, within five days after the date the copy is received, a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond.

          (p) If the person charged does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the department may forward the matter to the attorney general for enforcement of the penalty and interest as provided by law for legal judgments. An action to enforce a penalty order under this section must be initiated in a court of competent jurisdiction in Travis County or in the county in which the violation was committed.

          (q) Judicial review of a department order or review under this section assessing a penalty is under the substantial evidence rule. A suit may be initiated by filing a petition with a district court in Travis County, as provided by Subchapter G, Chapter 2001, Government Code.

          (r) If a penalty is reduced or not assessed, the department shall remit to the person the appropriate amount plus accrued interest if the penalty has been paid or shall execute a release of the bond if a supersedeas bond has been posted. The accrued interest on amounts remitted by the department under this subsection shall be paid at a rate equal to the rate provided by law for legal judgments and shall be paid for the period beginning on the date the penalty is paid to the department under this section and ending on the date the penalty is remitted.

          (s) A damage, cost, or penalty collected under this section is not an allowable expense in a claim or cost report that is or could be used to determine a rate or payment under the medical assistance program.

          (t) All funds collected under this section shall be deposited in the State Treasury to the credit of the General Revenue Fund.

          (u) Except as provided by Subsection (w), a person found liable for a violation under Subsection (c) that resulted in injury to an elderly person, as defined by Section 48.002(a)(1), a disabled person, as defined by Section 48.002(a)(8)(A), or a person younger than 18 years of age may not provide or arrange to provide health care services under the medical assistance program for a period of 10 years. The department by rule may provide for a period of ineligibility longer than 10 years. The period of ineligibility begins on the date on which the determination that the person is liable becomes final.

          (v) Except as provided by Subsection (w), a person found liable for a violation under Subsection (c) that did not result in injury to an elderly person, as defined by Section 48.002(a)(1), a disabled person, as defined by Section 48.002(a)(8)(A), or a person younger than 18 years of age may not provide or arrange to provide health care services under the medical assistance program for a period of three years. The department by rule may provide for a period of ineligibility longer than three years. The period of ineligibility begins on the date on which the determination that the person is liable becomes final.

          (w) The department by rule may prescribe criteria under which a person described by Subsection (u) or (v) is not prohibited from providing or arranging to provide health care services under the medical assistance program. The criteria may include consideration of:

                    (1) the person’s knowledge of the violation;

                    (2) the likelihood that education provided to the person would be sufficient to prevent future violations;

                    (3) the potential impact on availability of services in the community served by the person; and

                    (4) any other reasonable factor identified by the department.

          (x) Subsections (b)(1-b) through (1-f) do not prohibit a person from engaging in:

                    (1) generally accepted business practices, as determined by department rule, including:

                              (A) conducting a marketing campaign;

                              (B) providing token items of minimal value that advertise the person’s trade name; and

                              (C) providing complimentary refreshments at an informational meeting promoting the person’s goods or services;

                    (2) the provision of a value-added service if the person is a managed care organization; or

                    (3) other conduct specifically authorized by law, including conduct authorized by federal safe harbor regulations (42 C.F.R. Section 1001.952).

MEDICAID FRAUD PREVENTION SUBCHAPTER A. GENERAL PROVISIONS

§ 36.001. Definitions

In this chapter:

                    (1) “Claim” means a written or electronically submitted request or demand that:

                              (A) is signed by a provider or a fiscal agent and that identifies a product or service provided or purported to have been provided to a Medicaid recipient as reimbursable under the Medicaid program, without regard to whether the money that is requested or demanded is paid; or

                              (B) states the income earned or expense incurred by a provider in providing a product or a service and that is used to determine a rate of payment under the Medicaid program.

                    (2) “Documentary material” means a record, document, or other tangible item of any form, including:

                              (A) a medical document or X ray prepared by a person in relation to the provision or purported provision of a product or service to a Medicaid recipient;

                              (B) a medical, professional, or business record relating to:

                                        (i) the provision of a product or service to a Medicaid recipient; or

                                        (ii) a rate or amount paid or claimed for a product or service, including a record relating to a product or service provided to a person other than a Medicaid recipient as needed to verify the rate or amount;

                               (C) a record required to be kept by an agency that regulates health care providers; or

                              (D) a record necessary to disclose the extent of services a provider furnishes to Medicaid recipients.

                    (3) “Fiscal agent” means:

                              (A) a person who, through a contractual relationship with the Texas Department of Human Services, the Texas Department of Health, or another state agency, receives, processes, and pays a claim under the Medicaid program; or

                              (B) the designated agent of a person described by Paragraph (A).

                    (4) “Health care practitioner” means a dentist, podiatrist, psychologist, physical therapist, chiropractor, registered nurse, or other provider licensed to provide health care services in this state.

                    (5) “Managed care organization” has the meaning assigned by Section 32.039(a).

                    (5-a) “Material” means having a natural tendency to influence or to be capable of influencing.

                    (6) “Medicaid program” means the state Medicaid program.

                    (7) “Medicaid recipient” means an individual on whose behalf a person claims or receives a payment from the Medicaid program or a fiscal agent, without regard to whether the individual was eligible for benefits under the Medicaid program.

                    (7-a) “Obligation” means a duty, whether or not fixed, that arises from:

                              (A) an express or implied contractual, grantor-grantee, or licensor-licensee relationship;

                              (B) a fee-based or similar relationship;

                              (C) a statute or regulation; or

                              (D) the retention of any overpayment.

                    (8) “Physician” means a physician licensed to practice medicine in this state.

                     (9) “Provider” means a person who participates in or who has applied to participate in the Medicaid program as a supplier of a product or service and includes:

                              (A) a management company that manages, operates, or controls another provider;

                              (B) a person, including a medical vendor, that provides a product or service to a provider or to a fiscal agent;

                              (C) an employee of a provider;

                              (D) a managed care organization; and

                              (E) a manufacturer or distributor of a product for which the Medicaid program provides reimbursement.

                    (10) “Service” includes care or treatment of a Medicaid recipient.

                    (11) “Signed” means to have affixed a signature directly or indirectly by means of handwriting, typewriting, signature stamp, computer impulse, or other means recognized by law.

                    (12) “Unlawful act” means an act declared to be unlawful under Section 36.002.

§ 36.0011. Culpable Mental State

          (a) For purposes of this chapter, a person acts "knowingly" with respect to information if the person:

                    (1) has knowledge of the information;

                    (2) acts with conscious indifference to the truth or falsity of the information; or

                    (3) acts in reckless disregard of the truth or falsity of the information.

          (b) Proof of the person’s specific intent to commit an unlawful act under Section 36.002 is not required in a civil or administrative proceeding to show that a person acted "knowingly" with respect to information under this chapter.

§ 36.002. Unlawful Acts

A person commits an unlawful act if the person:

                    (1) knowingly makes or causes to be made a false statement or misrepresentation of a material fact to permit a person to receive a benefit or payment under the Medicaid program that is not authorized or that is greater than the benefit or payment that is authorized;

                    (2) knowingly conceals or fails to disclose information that permits a person to receive a benefit or payment under the Medicaid program that is not authorized or that is greater than the benefit or payment that is authorized;

                    (3) knowingly applies for and receives a benefit or payment on behalf of another person under the Medicaid program and converts any part of the benefit or payment to a use other than for the benefit of the person on whose behalf it was received;

                    (4) knowingly makes, causes to be made, induces, or seeks to induce the making of a false statement or misrepresentation of material fact concerning:

                              (A) the conditions or operation of a facility in order that the facility may qualify for certification or recertification required by the Medicaid program, including certification or recertification as:

                                        (i) a hospital;

                                        (ii) a nursing facility or skilled nursing facility;

                                        (iii) a hospice;

                                        (iv) an intermediate care facility for the mentally retarded;

                                        (v) an assisted living facility; or

                                        (vi) a home health agency; or

                              (B) information required to be provided by a federal or state law, rule, regulation, or provider agreement pertaining to the Medicaid program;

                    (5) except as authorized under the Medicaid program, knowingly pays, charges, solicits, accepts, or receives, in addition to an amount paid under the Medicaid program, a gift, money, a donation, or other consideration as a condition to the provision of a service or product or the continued provision of a service or product if the cost of the service or product is paid for, in whole or in part, under the Medicaid program;

                    (6) knowingly presents or causes to be presented a claim for payment under the Medicaid program for a product provided or a service rendered by a person who:

                              (A) is not licensed to provide the product or render the service, if a license is required; or

                              (B) is not licensed in the manner claimed;

                    (7) knowingly makes or causes to be made a claim under the Medicaid program for:

                              (A) a service or product that has not been approved or acquiesced in by a treating physician or health care practitioner;

                              (B) a service or product that is substantially inadequate or inappropriate when compared to generally recognized standards within the particular discipline or within the health care industry; or

                              (C) a product that has been adulterated, debased, mislabeled, or that is otherwise inappropriate;

                    (8) makes a claim under the Medicaid program and knowingly fails to indicate the type of license and the identification number of the licensed health care provider who actually provided the service;

                    (9) conspires to commit a violation of Subdivision (1), (2), (3), (4), (5), (6), (7), (8), (10), (11), (12), or (13);

                    (10) is a managed care organization that contracts with the Health and Human Services Commission or other state agency to provide or arrange to provide health care benefits or services to individuals eligible under the Medicaid program and knowingly:

                              (A) fails to provide to an individual a health care benefit or service that the organization is required to provide under the contract;

                              (B) fails to provide to the commission or appropriate state agency information required to be provided by law, commission or agency rule, or contractual provision; or

                              (C) engages in a fraudulent activity in connection with the enrollment of an individual eligible under the Medicaid program in the organization’s managed care plan or in connection with marketing the organization’s services to an individual eligible under the Medicaid program;

                    (11) knowingly obstructs an investigation by the attorney general of an alleged unlawful act under this section;

                    (12) knowingly makes, uses, or causes the making or use of a false record or statement material to an obligation to pay or transmit money or property to this state under the Medicaid program, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to this state under the Medicaid program; or

                    (13) knowingly engages in conduct that constitutes a violation under Section 32.039(b).

§ 36.003. Documentary Material in Possession of State Agency

          (a) A state agency, including the Health and Human Services Commission, the Texas Department of Human Services, the Texas Department of Health, the Texas Department of Mental Health and Mental Retardation, or the Department of Protective and Regulatory Services, shall provide the attorney general access to all documentary materials of persons and Medicaid recipients under the Medicaid program to which that agency has access. Documentary material provided under this subsection is provided to permit investigation of an alleged unlawful act or for use or potential use in an administrative or judicial proceeding.

          (b) Except as ordered by a court for good cause shown, the office of the attorney general may not produce for inspection or copying or otherwise disclose the contents of documentary material obtained under this section to a person other than:

                    (1) an employee of the attorney general;

                    (2) an agency of this state, the United States, or another state;

                    (3) a criminal district attorney, district attorney, or county attorney of this state;

                    (4) the United States attorney general;

                    (5) a state or federal grand jury;

                    (6) a political subdivision of this state; or

                    (7) a person authorized by the attorney general to receive the information.

§ 36.004. Immunity

Notwithstanding any other law, a person is not civilly or criminally liable for providing access to documentary material under this chapter to:

                    (1) an employee of the attorney general;

                    (2) an agency of this state, the United States, or another state;

                    (3) a criminal district attorney, district attorney, or county attorney of this state;

                    (4) the United States attorney general;

                    (5) a state or federal grand jury;

                    (6) a political subdivision of this state; or

                    (7) a person authorized by the attorney general to receive the information.

§ 36.005. Suspension or Revocation of Agreement; Professional Discipline

          (a) A health and human services agency, as defined by Section 531.001, Government Code:

                    (1) shall suspend or revoke:

                              (A) a provider agreement between the agency and a person, other than a person who operates a nursing facility or an ICF-MR facility, found liable under Section 36.052; and

                              (B) a permit, license, or certification granted by the agency to a person, other than a person who operates a nursing facility or an ICF-MR facility, found liable under Section 36.052; and

                    (2) may suspend or revoke:

                              (A) a provider agreement between the agency and a person who operates a nursing facility or an ICF-MR facility and who is found liable under Section 36.052; or

                              (B) a permit, license, or certification granted by the agency to a person who operates a nursing facility or an ICF-MR facility and who is found liable under Section 36.052.

          (b) A provider found liable under Section 36.052 for an unlawful act may not, for a period of 10 years, provide or arrange to provide health care services under the Medicaid program or supply or sell, directly or indirectly, a product to or under the Medicaid program. The executive commissioner of the Health and Human Services Commission may by rule:

                    (1) provide for a period of ineligibility longer than 10 years; or

                    (2) grant a provider a full or partial exemption from the period of ineligibility required by this subsection if the executive commissioner finds that enforcement of the full period of ineligibility is harmful to the Medicaid program or a beneficiary of the program.

          (b-1) The period of ineligibility begins on the date on which judgment finding the provider liable under Section 36.052 is entered by the trial court.

          (b-2) Subsections (b) and (b-1) do not apply to a provider who operates a nursing facility or an ICF-MR facility.

          (c) A person licensed by a state regulatory agency who commits an unlawful act is subject to professional discipline under the applicable licensing law or rules adopted under that law.

          (d) For purposes of this section, a person is considered to have been found liable under Section 36.052 if the person is found liable in an action brought under Subchapter C.

          (e) Notwithstanding Subsection (b-1), the period of ineligibility for an individual licensed by a health care regulatory agency or a physician begins on the date on which the determination that the individual or physician is liable becomes final.

          (f) For purposes of Subsection (e), a "physician" includes a physician, a professional association composed solely of physicians, a single legal entity authorized to practice medicine owned by two or more physicians, a nonprofit health corporation certified by the Texas Medical Board under Chapter 162, Occupations Code, or a partnership composed solely of physicians.

          (g) For purposes of Subsection (e), "health care regulatory agency" has the meaning assigned by Section 774.001, Government Code.

§ 36.006. Application of Other Law

          The application of a civil remedy under this chapter does not preclude the application of another common law, statutory, or regulatory remedy, except that a person may not be liable for a civil remedy under this chapter and civil damages or a penalty under Section 32.039 if the civil remedy and civil damages or penalty are assessed for the same act.

§ 36.007. Recovery of Costs, Fees, and Expenses

          The attorney general may recover fees, expenses, and costs reasonably incurred in obtaining injunctive relief or civil remedies or in conducting investigations under this chapter, including court costs, reasonable attorney’s fees, witness fees, and deposition fees.

§ 36.008. Use of Money Recovered

          The legislature, in appropriating money recovered under this chapter, shall consider the requirements of the attorney general and other affected state agencies in investigating Medicaid fraud and enforcing this chapter.

SUBCHAPTER B. ACTION BY ATTORNEY GENERAL

§ 36.051. Injunctive Relief

          (a) If the attorney general has reason to believe that a person is committing, has committed, or is about to commit an unlawful act, the attorney general may institute an action for an appropriate order to restrain the person from committing or continuing to commit the act.

          (b) An action under this section shall be brought in a district court of Travis County or of a county in which any part of the unlawful act occurred, is occurring, or is about to occur.

§ 36.052. Civil Remedies

          (a) Except as provided by Subsection (c), a person who commits an unlawful act is liable to the state for:

                    (1) the amount of any payment or the value of any monetary or in-kind benefit provided under the Medicaid program, directly or indirectly, as a result of the unlawful act, including any payment made to a third party;

                    (2) interest on the amount of the payment or the value of the benefit described by Subdivision (1) at the prejudgment interest rate in effect on the day the payment or benefit was received or paid, for the period from the date the benefit was received or paid to the date that the state recovers the amount of the payment or value of the benefit;

                    (3) a civil penalty of:

                              (A) not less than $5,500 or the minimum amount imposed as provided by 31 U.S.C. Section 3729(a), if that amount exceeds $5,500, and not more than $15,000 or the maximum amount imposed as provided by 31 U.S.C. Section 3729(a), if that amount exceeds $15,000, for each unlawful act committed by the person that results in injury to an elderly person, as defined by Section 48.002(a)(1), a disabled person, as defined by Section 48.002(a)(8)(A), or a person younger than 18 years of age; or

                              (B) not less than $5,500 or the minimum amount imposed as provided by 31 U.S.C. Section 3729(a), if that amount exceeds $5,500, and not more than $11,000 or the maximum amount imposed as provided by 31 U.S.C. Section 3729(a), if that amount exceeds $11,000, for each unlawful act committed by the person that does not result in injury to a person described by Paragraph (A); and

                    (4) two times the amount of the payment or the value of the benefit described by Subdivision (1).

          (b) In determining the amount of the civil penalty described by Subsection (a)(3), the trier of fact shall consider:

                    (1) whether the person has previously violated the provisions of this chapter;

                    (2) the seriousness of the unlawful act committed by the person, including the nature, circumstances, extent, and gravity of the unlawful act;

                    (3) whether the health and safety of the public or an individual was threatened by the unlawful act;

                    (4) whether the person acted in bad faith when the person engaged in the conduct that formed the basis of the unlawful act; and

                    (5) the amount necessary to deter future unlawful acts.

          (c) The trier of fact may assess a total of not more than two times the amount of a payment or the value of a benefit described by Subsection (a)(1) if the trier of fact finds that:

                    (1) the person furnished the attorney general with all information known to the person about the unlawful act not later than the 30th day after the date on which the person first obtained the information; and

                    (2) at the time the person furnished all the information to the attorney general, the attorney general had not yet begun an investigation under this chapter.

          (d) An action under this section shall be brought in Travis County or in a county in which any part of the unlawful act occurred.

          (e) The attorney general may:

                    (1) bring an action for civil remedies under this section together with a suit for injunctive relief under Section 36.051; or

                    (2) institute an action for civil remedies independently of an action for injunctive relief.

§ 36.053. Investigation

          (a) The attorney general may take action under Subsection (b) if the attorney general has reason to believe that:

                    (1) a person has information or custody or control of documentary material relevant to the subject matter of an investigation of an alleged unlawful act;

                    (2) a person is committing, has committed, or is about to commit an unlawful act; or

                    (3) it is in the public interest to conduct an investigation to ascertain whether a person is committing, has committed, or is about to commit an unlawful act.

          (b) In investigating an unlawful act, the attorney general may:

                    (1) require the person to file on a prescribed form a statement in writing, under oath or affirmation, as to all the facts and circumstances concerning the alleged unlawful act and other information considered necessary by the attorney general;

                    (2) examine under oath a person in connection with the alleged unlawful act; and

                    (3) execute in writing and serve on the person a civil investigative demand requiring the person to produce the documentary material and permit inspection and copying of the material under Section 36.054.

          (c) The office of the attorney general may not release or disclose information that is obtained under Subsection (b)(1) or (2) or any documentary material or other record derived from the information except:

                    (1) by court order for good cause shown;

                    (2) with the consent of the person who provided the information;

                    (3) to an employee of the attorney general;

                    (4) to an agency of this state, the United States, or another state;

                    (5) to any attorney representing the state under Section 36.055 or in a civil action brought under Subchapter C;

                    (6) to a political subdivision of this state; or

                    (7) to a person authorized by the attorney general to receive the information.

          (d) The attorney gener