07 LC 29
2846ERS
House
Bill 551 (COMMITTEE SUBSTITUTE)
By:
Representative Lindsey of the
54th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 4 of Title 49 of the Official Code of Georgia Annotated, relating
to public assistance, so as to provide for the "State False Medicaid Claims
Act"; to provide for a short title; to provide for legislative findings; to
provide for definitions; to provide for liability to this state for certain
false claims; to provide for civil actions for false Medicaid claims; to provide
for exclusions for certain civil actions; to provide for procedure; to provide
for burden of proof; to provide for whistleblower protection; to provide for
statute of limitations; to provide for venue; to provide for related matters; to
provide for an effective date; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
This
Act shall be known and may be cited as the "State False Medicaid Claims
Act."
SECTION
2.
The
General Assembly recognizes that the submission of false or fraudulent claims to
the Georgia Medicaid program can and does cause the state treasury to incur
serious financial losses which results in direct harm to the taxpayers of this
state. This Act is intended to provide a partial remedy for this problem by
providing specific procedures whereby this state, and private citizens acting
for and on behalf of this state, may bring civil actions against persons and
entities who have obtained state funds through the submission of false or
fraudulent claims to state agencies. This Act, in its provision for double and
sometimes treble damages, is remedial in purpose, and is intended not to punish,
but insofar as possible to make the state treasury whole for both the direct and
indirect losses caused by the submission of false or fraudulent claims resulting
in payments by this state or state agencies. By receiving a portion of the
recovery in civil actions brought under this article, "whistle blowers" are
encouraged to come forward when they have information about the submission of
false claims to the Georgia Medicaid program, and rewarded when their initiative
results in civil recoveries for this state.
SECTION
3.
Chapter
4 of Title 49 of the Official Code of Georgia Annotated, relating to public
assistance, is amended by adding a new article to read as follows:
"ARTICLE
7B
49-4-168.
As
used in this article, the term:
(1)
'Claim' includes any request or demand, whether under a contract or otherwise,
for money, property, or services, which is made to the Georgia Medicaid program,
or to any officer, employee, fiscal intermediary, grantee or contractor of the
Georgia Medicaid program, or to other persons or entities if it results in
payments by the Georgia Medicaid program, if the Georgia Medicaid program
provides or will provide any portion of the money or property requested or
demanded, or if the Georgia Medicaid program will reimburse the contractor,
grantee, or other recipient for any portion of the money or property requested
or demanded. A claim includes a request or demand made orally, in writing,
electronically, or magnetically. Each claim may be treated as a separate
claim.
(2)
'Knowing' and 'knowingly' mean that a person, with respect to
information:
(A)
Has actual knowledge of the information;
(B)
Acts in deliberate ignorance of the truth or falsity of the information;
or
(C)
Acts in reckless disregard of the truth or falsity of the information. No proof
of specific intent to defraud is required.
(3)
'Person' means any natural person, corporation, company, association, firm,
partnership, society, joint-stock company, or any other entity with capacity to
sue or be sued.
49-4-168.1.
(a)
Any person who:
(1)
Knowingly presents or causes to be presented to the Georgia Medicaid program a
false or fraudulent claim for payment or approval;
(2)
Knowingly makes, uses, or causes to be made or used, a false record or statement
to get a false or fraudulent claim paid or approved by the Georgia Medicaid
program;
(3)
Conspires to defraud the Georgia Medicaid program by getting a false or
fraudulent claim allowed or paid;
(4)
Has possession, custody, or control of property or money used, or to be used by
the Georgia Medicaid program and, intending to defraud the Georgia Medicaid
program or willfully to conceal the property, delivers, or causes to be
delivered, less property than the amount for which the person receives a
certificate of receipt;
(5)
Being authorized to make or deliver a document certifying receipt of property
used, or to be used, by the Georgia Medicaid program and, intending to defraud
the Georgia Medicaid program, makes or delivers the receipt without completely
knowing that the information on the receipt is true;
(6)
Knowingly buys, or receives as a pledge of an obligation or debt, public
property from an officer or employee of the Georgia Medicaid program, who
lawfully may not sell or pledge the property; or
(7)
Knowingly makes, uses, or causes to be made or used, a false record or statement
to conceal, avoid, or decrease an obligation to pay, repay or transmit money or
property to the State of Georgia,
shall
be liable to the State of Georgia for a civil penalty of not less than $5,500.00
and not more than $11,000.00 for each false or fraudulent claim, plus three
times the amount of damages which the Georgia Medicaid program sustains because
of the act of such person.
(b)
The provisions of subsection (a) of this Code section notwithstanding, if the
court finds that:
(1)
The person committing the violation of this subsection furnished officials of
the Georgia Medicaid program with all information known to such person about the
violation within 30 days after the date on which the defendant first obtained
the information;
(2)
Such person fully cooperated with any government investigation of such
violation; and
(3)
At the time such person furnished the Georgia Medicaid program with the
information about the violation, no criminal prosecution, civil action, or
administrative action had commenced under this article with respect to such
violation, and the person did not have actual knowledge of the existence of an
investigation into such violation,
the
court may assess not more than two times the amount of the actual damages which
the Georgia Medicaid program sustained because of the act of such
person.
(c)
A person violating any provision of this subsection shall also be liable to this
state for all costs of any civil action brought to recover the damages and
penalties provided under this article.
49-4-168.2.
(a)
The Attorney General shall be authorized to investigate suspected, alleged, and
reported violations of this article. If the Attorney General finds that a
person has violated or is violating this article, then the Attorney General may
bring a civil action against such person under this article.
(b)
Subject to the exclusions set forth in this Code section, a civil action under
this article may also be brought by a private person. A civil action shall be
brought in the name of the State of Georgia. The civil action may be dismissed
only if the court and the Attorney General give written consent to the dismissal
and state the reasons for consenting to such dismissal.
(c)
Where a private person brings a civil action under this article, such person
shall follow the following special procedures:
(1)
A copy of the complaint and written disclosure of substantially all material
evidence and information the person possesses shall be served on the Attorney
General;
(2)
The complaint shall be filed in camera, shall remain under seal for at least 60
days, and shall not be served on the defendant until the court so orders. The
purpose of the period under seal shall be to allow the Attorney General to
investigate the allegations of the complaint. The Attorney General may elect to
intervene and proceed with the civil action within 60 days after it receives
both the complaint and the material evidence and information;
(3)
The Attorney General may, for good cause shown, move the court for extensions of
the time during which the complaint remains under seal under paragraph (2) of
this subsection. Any such motions may be supported by affidavits or other
submissions in camera;
(4)
Before the expiration of the 60 day period or any extensions obtained under
paragraph (3) of this subsection, the Attorney General shall:
(A)
Proceed with the civil action, in which case the civil action shall be conducted
by the Attorney General; or
(B)
Notify the court that it declines to take over the civil action, in which case
the person bringing the civil action shall have the right to proceed with the
civil action;
(5)
The defendant shall not be required to respond to any complaint filed under this
Code section until 30 days after the complaint is unsealed and served upon the
defendant; and
(6)
When a person brings a civil action under this subsection, no person other than
the Attorney General may intervene or bring a related civil action based on the
facts underlying the pending civil action.
(d)(1)
If the Attorney General elects to intervene and proceed with the civil action,
he or she shall have the primary responsibility for prosecuting the civil
action, and shall not be bound by an act of the person bringing such civil
action. Such person shall have the right to continue as a party to the civil
action, subject to the limitations set forth in this subsection.
(2)
The Attorney General may dismiss the civil action, notwithstanding the
objections of the person initiating the civil action, if the person has been
notified by the Attorney General of the filing of the motion and the court has
provided the person with an opportunity for a hearing on the
motion.
(3)
The Attorney General may settle the civil action with the defendant
notwithstanding the objections of the person initiating the civil action if the
court determines, after a hearing, that the proposed settlement is fair,
adequate, and reasonable under all the circumstances. Upon a showing of good
cause, such hearing may be held in camera.
(4)
Upon a showing by the Attorney General that unrestricted participation during
the course of the litigation by the person initiating the civil action would
interfere with or unduly delay the Attorney General´s litigation of the
case, or would be repetitious, irrelevant, or for purposes of harassment, the
court may, in its discretion, impose limitations on the person´s
participation, such as:
(A)
Limiting the number of witnesses the person may call;
(B)
Limiting the length of the testimony of such witnesses;
(C)
Limiting the person´s cross-examination of witnesses; or
(D)
Otherwise limiting the participation by the person in the
litigation.
(e)
Upon a showing by the defendant that unrestricted participation during the
course of the litigation by the person initiating the civil action would be for
purposes of harassment or would cause the defendant undue burden or unnecessary
expense, the court may limit the participation by the person in the
litigation.
(f)
If the Attorney General elects not to proceed with the civil action, the person
who initiated the civil action shall have the right to conduct the civil action.
If the Attorney General so requests, he or she shall be served with copies of
all pleadings filed in the civil action and shall be supplied with copies of all
deposition transcripts. When a person proceeds with the civil action, the court
may nevertheless permit the Attorney General to intervene at a later date for
any purpose, including, but not limited to, dismissal of the civil action
notwithstanding the objections of the person initiating the civil action if such
person has been notified by the Attorney General of the filing of such motion
and the court has provided such person with an opportunity for a hearing on such
motion.
(g)
Whether or not the Attorney General proceeds with the civil action, upon a
showing by the Attorney General that certain actions of discovery by the person
initiating the civil action would interfere with the Attorney General´s
investigation or prosecution of a criminal or civil matter arising out of the
same facts, the court may stay such discovery for a period of not more than 60
days. Such a showing shall be conducted in camera. The court may extend the 60
day period upon a further showing in camera that the Attorney General has
pursued the criminal or civil investigation or proceedings with reasonable
diligence and any proposed discovery in the civil action will interfere with the
ongoing criminal or civil investigation or proceedings.
(h)
Notwithstanding subsections (b) and (c) of this Code section, the Attorney
General may elect to pursue this state´s claim through any alternate remedy
available to the Attorney General, including any administrative proceeding to
determine a civil money penalty. If any such alternate remedy is pursued in
another proceeding, the person initiating the civil action shall have the same
rights in such proceeding as such person would have had if the civil action had
continued under this Code section. Any finding of fact or conclusion of law
made in such other proceeding that has become final shall be conclusive on all
parties to a civil action under this Code section. For purposes of this
subsection, a finding or conclusion is final if it has been finally determined
on appeal to the appropriate court of the State of Georgia, if all time for
filing such an appeal with respect to the finding or conclusion has expired, or
if the finding or conclusion is not subject to judicial review.
(i)(1)
If the Attorney General proceeds with a civil action brought by a private person
under subsection (b) of this Code section, such person shall, subject to the
second sentence of this paragraph, receive at least 15 percent but not more than
25 percent of the proceeds of the civil action or settlement of the claim,
depending upon the extent to which the person substantially contributed to the
prosecution of the civil action. Where the civil action is one which the court
finds to be based primarily on disclosures of specific information, other than
information provided by the person bringing the civil action, relating to
allegations or transactions in a criminal, civil, or administrative hearing, in
a legislative, administrative, or Attorney General hearing, audit, or
investigation, or from the news media, the court may award such sums as it
considers appropriate, but in no case more than 10 percent of the proceeds,
taking into account the significance of the information and the role of the
person bringing such civil action in advancing the case to litigation. Any
payment to a person under the first or second sentence of this paragraph shall
be made from the proceeds. The remaining proceeds shall be payable to the
Indigent Care Trust Fund to be used for the purposes set forth in Code Section
31-8-154. Any such person shall also receive an amount for reasonable expenses
which the court finds to have been necessarily incurred, plus reasonable
attorney´s fees and costs. All such expenses, fees, and costs shall be
awarded against the defendant.
(2)
If the Attorney General does not proceed with a civil action under this Code
section, the person bringing the civil action or settling the claim shall
receive an amount which the court decides is reasonable for collecting the civil
penalty and damages. Such amount shall be not less than 25 percent and not more
than 30 percent of the proceeds of the civil action or settlement and shall be
paid out of such proceeds. The remaining proceeds shall be payable to the
Indigent Care Trust Fund to be used for the purposes set forth in Code Section
31-8-154. Such person shall also receive an amount for reasonable expenses
which the court finds to have been necessarily incurred, plus reasonable
attorney´s fees and costs. All such expenses, fees, and costs shall be
awarded against the defendant.
(3)
Whether or not the Attorney General proceeds with the civil action, if the court
finds that the civil action was brought by a person who planned and initiated
the violation of Code Section 49-4-168.1 upon which the civil action was
brought, then the court may, to the extent the court considers appropriate,
reduce the share of the proceeds of the civil action which the person would
otherwise receive under paragraph (1) or (2) of this subsection, taking into
account the role of that person in advancing the case to litigation and any
relevant circumstances pertaining to the violation. If the person bringing the
civil action is convicted of criminal conduct arising from his or her role in
the violation of Code Section 49-4-168.1, such person shall be dismissed from
the civil action and shall not receive any share of the proceeds of the civil
action. Such dismissal shall not prejudice the right of the State of Georgia to
continue the civil action, represented by the Attorney General.
(4)
If the Attorney General does not proceed with the civil action and the person
bringing the civil action conducts the civil action, the court may award to the
defendant its reasonable attorney´s fees and expenses against the person
bringing the civil action if the defendant prevails in the civil action and the
court finds that the claim of the person bringing the civil action was clearly
frivolous, clearly vexatious, or brought primarily for purposes of
harassment.
(5)
The State of Georgia shall not be liable for expenses which a private person
incurs in bringing a civil action under this article.
(j)
For purposes of this subsection, 'public employee,' 'public official,' and
'public employment' shall include federal, state, and local employees and
officials.
(1)
No civil action may be brought under this article by a person who is or was a
public employee or public official if the allegations of such action are
substantially based upon:
(A)
Allegations of wrongdoing or misconduct which such person had a duty or
obligation to report or investigate within the scope of his or her public
employment or office; or
(B)
Information or records to which such person had access as a result of his or her
public employment or office.
(2)
No court shall have jurisdiction over a civil action under this article based
upon the public disclosure of allegations or transactions in a criminal, civil,
or administrative hearing, in a legislative, administrative, or Attorney General
report, hearing, audit, or investigation, or from the news media, unless the
civil action is brought by the Attorney General or unless the person bringing
the civil action is an original source of the information. For purposes of this
paragraph, 'original source' means an individual who has direct and independent
knowledge of the information on which the allegations are based and has
voluntarily provided the information to this state before filing a civil action
under this Code section based on such information.
(3)
In no event may a person bring a civil action under this article which is based
upon allegations or transactions which are the subject of a civil or
administrative proceeding to which the State of Georgia is already
party.
(4)
No civil action may be brought under this article with respect to any claim
relating to the assessment, payment, nonpayment, refund or collection of taxes
pursuant to any provisions of Title 48.
49-4-168.3.
(a)
In any civil action brought under this article, the State of Georgia or person
bringing the civil action shall be required to prove all essential elements of
the cause of civil action, including damages, by a preponderance of the
evidence.
(b)
Except as otherwise provided in this article, all civil actions brought under
this article shall be governed by the provisions of Chapter 11 of Title 9, the
'Georgia Civil Practice Act.'
49-4-168.4.
Any
employee who is discharged, demoted, suspended, threatened, harassed, or in any
other manner discriminated against in the terms and conditions of employment by
his or her employer because of lawful acts done by the employee, on behalf of
the employee or others, in furtherance of a civil action under this article,
including investigation for, initiation of, testimony for, or assistance in a
civil action filed or to be filed under this article, shall be entitled to all
relief necessary to make the employee whole. Such relief shall include
reinstatement with the same seniority status such employee would have had but
for the discrimination, two times the amount of back pay, interest on the back
pay award, and compensation for any special damages sustained as a result of the
discrimination, including litigation costs and reasonable attorney´s fees.
An employee may bring a civil action in an appropriate court of the State of
Georgia for the relief provided in this Code section.
49-4-168.5.
All
civil actions under this article shall be filed pursuant to Code Section
49-4-168.2 within six years after the date the violation was committed, or three
years after the date when facts material to the right of civil action are known
or reasonably should have been known by the state official charged with the
responsibility to act in the circumstances, whichever occurs last; provided,
however, that in no event shall any civil action be filed more than ten years
after the date upon which the violation was committed.
49-4-168.6.
All
civil actions brought against natural persons under this article shall be
brought in the county where the defendant or, in the case of multiple
defendants, or of defendants who are not residents of the State of Georgia, in
any county where any one defendant resides, can be found, transacts business or
commits an act in furtherance of the submittal of a false or fraudulent claim to
the Georgia Medicaid program."
SECTION
4.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
5.
All
laws and parts of law in conflict with this Act are repealed.