2007 Regular Session
To: Medicaid; Judiciary A
By: Representative Moak
AN ACT TO CREATE THE MISSISSIPPI MEDICAID FALSE CLAIMS ACT; TO DEFINE CERTAIN TERMS; TO PROVIDE FOR VIOLATIONS OF THIS ACT; TO PROVIDE FOR DAMAGES; TO PROVIDE FOR CIVIL ACTIONS AND EMPLOYEE REMEDIES; TO PROVIDE PROCEDURES FOR ACTIONS UNDER THIS ACT; TO AMEND SECTIONS 43-13-205, 43-13-207, 43-13-209, 43-13-211, 43-13-213 AND 43-13-215, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) This act shall be known and may be cited as the "Mississippi Medicaid False Claims Act."
(2) As used in this act, the term "Medicaid program" means the program established under the Mississippi Medicaid Law and any successor program to the Medicaid program.
SECTION 2. (1) (a) Any person who:
(i) Presents or causes to be presented to the state a claim for payment under the Medicaid program knowing that the claim is false or fraudulent;
(ii) Makes, uses, or causes to be made or used, a record or statement to get a false or fraudulent claim under the Medicaid program paid for or approved by the state knowing that the record or statement is false;
(iii) Conspires to defraud the state by getting a claim allowed or paid under the Medicaid program knowing that the claim is false or fraudulent; or
(iv) Makes, uses, or causes to be made or used, a record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the state, relative to the Medicaid program, knowing that the record or statement is false;
is liable to the state for a civil penalty of not less than Five Thousand Dollars ($5,000.00) and not more than Ten Thousand Dollars ($10,000.00), plus three (3) times the amount of damages that the state sustains because of the act of that person.
(b) However, if the court finds that:
(i) The person committing the violation of this subsection (1) furnished officials of the state responsible for investigating false claims violations with all information known to the person about the violation within thirty (30) days after the date on which the defendant first obtains the information;
(ii) The person fully cooperated with any state investigation of the violation; and
(iii) At the time that the person furnished the state with the information about the violation, no criminal prosecution, civil action or administrative action had begun under this act with respect to the violation, and the person did not have actual knowledge of the existence of an investigation into the violation; the court may assess not less than two (2) times the amount of damages that the state sustains because of the act of the person. A person violating this subsection (1) also shall be liable for the costs of a civil action brought to recover any such penalty or damages.
(2) For purposes of this section, the term "knowing" means 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 and no proof of specific intent to defraud is required.
SECTION 3. (1) (a) A person may bring a civil action for a violation of Section 2 of this act for the person and for the state. The action shall be brought in the name of the State of Mississippi. The action may be dismissed only if the court and the Attorney General or district attorney give written consent to the dismissal and their reasons for consenting.
(b) A copy of the complaint and written disclosure of substantially all material evidence and information that the person possesses shall be served on the state. The complaint shall be filed in camera, shall remain under seal for at least sixty (60) days, and shall not be served on the defendant until the court so orders. The state may elect to intervene and proceed with the action within sixty (60) days after it receives both the complaint and the material evidence and information.
(c) The state, for good cause shown, may move the court for extensions of the time during which the complaint remains under seal under paragraph (b) of this subsection. Any such motions may be supported by affidavits or other submissions in camera. The defendant shall not be required to respond to any complaint filed under this section until twenty (20) days after the complaint is unsealed and served upon the defendant.
(d) Before the expiration of the sixty-day period or any extensions obtained under paragraph (c) of this subsection, the state shall:
(i) Proceed with the action, in which case the action shall be conducted by the state; or
(ii) Notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to conduct the action.
(e) When a person brings an action under this subsection (1), no person other than the state may intervene or bring a related action based on the facts underlying the pending action.
(2) (a) If the state proceeds with the action, it shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the person bringing the action. The person shall have the right to continue as a party to the action, subject to the limitations set forth in paragraph (b) of this subsection.
(b) (i) The state may dismiss the action notwithstanding the objections of the person initiating the action if the person has been notified by the state of the filing of the motion and the court has provided the person with an opportunity for a hearing on the motion.
(ii) The state may settle the action with the defendant notwithstanding the objections of the person initiating the 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, the hearing may be held in camera.
(iii) Upon a showing by the state that unrestricted participation during the course of the litigation by the person initiating the action would interfere with or unduly delay the state's prosecution of the case, or would be repetitious, irrelevant or for purposes of harassment, the court, in its discretion, may impose limitations on the person's participation such as:
1. Limiting the number of witnesses the person may call;
2. Limiting the length of the testimony of the witnesses;
3. Limiting the person's cross-examination of witnesses; or
4. Otherwise limiting the participation by the person in the litigation.
(iv) Upon a showing by the defendant that unrestricted participation during the course of the litigation by the person initiating the 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.
(c) If the state elects not to proceed with the action, the person who initiated the action shall have the right to conduct the action. If the state so requests, it shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts at the state's expense. When a person proceeds with the action, the court, without limiting the status and rights of the person initiating the action, nevertheless may permit the state to intervene at a later date upon a showing of good cause.
(d) Whether or not the state proceeds with the action, upon a showing by the state that certain actions of discovery by the person initiating the action would interfere with the state's investigation or prosecution of a criminal or civil matter arising out of the same facts, the court may stay the discovery for a period of not more than sixty (60) days. Such a showing shall be conducted in camera. The court may extend the sixty-day period upon a further showing in camera that the state 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.
(e) Notwithstanding subsection (1) of this section, the state may elect to pursue its claim through any alternate remedy available to the state, including any administrative proceeding to determine a civil monetary penalty. If any such alternate remedy is pursued in another proceeding, the person initiating the action shall have those same rights in those proceedings as the person would have had if the action had continued under this section. Any finding of fact or conclusion of law made in the other proceeding that has become final shall be conclusive on all parties to an action under this section. For purposes of the preceding sentence, a finding or conclusion is final if it has been finally determined on appeal to the appropriate court of jurisdiction, 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.
(3) (a) If the state proceeds with an action brought by a person under subsection (1) of this section, a person shall receive, subject to the second sentence of this paragraph (a), at least fifteen percent (15%) but not more than twenty-five percent (25%) of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action. Where the action is one that the court finds to be based primarily on disclosures of specific information (other than information provided by the person bringing the action) relating to allegations or transactions in a criminal, civil or administrative hearing, report, audit, investigation, or from the news media, the court may award such sums as it considers appropriate, but in no case more than ten percent (10%) of the proceeds, taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation. Any payment to a person under the first or second sentence of this paragraph (a) shall be made from the proceeds. Any such person also shall receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorney's fees and costs. All those expenses, fees and costs shall be awarded against the defendant.
(b) If the state does not proceed with an action under this section, the person bringing the action or settling the claim shall receive an amount that the court decides is reasonable for collecting the civil penalty and damages. The amount shall be not less than twenty-five percent (25%) and not more than thirty percent (30%) of the proceeds of the action or settlement and shall be paid out of the proceeds. The person also shall receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorney's fees and costs. All those expenses, fees and costs shall be awarded against the defendant.
(c) Whether or not the state proceeds with the action, if the court finds that the action was brought by a person who planned and initiated the violation of Section 2 of this act upon which the action was brought, then the court, to the extent the court considers appropriate, may reduce the share of the proceeds of the action that the person otherwise would receive under paragraph (a) or (b) 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 action is convicted of criminal conduct arising from the person's role in the violation of Section 1 of this act, that person shall be dismissed from the civil action and shall not receive any share of the proceeds of the action. That dismissal shall not prejudice the right of the state to continue the action.
(d) If the state does not proceed with the action and the person bringing the action conducts the action, the court shall award to the defendant its reasonable attorney's fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious or brought primarily for purposes or harassment.
(4) (a) In no event may a person bring an action under subsection (1) of this section that is based upon allegations or transactions that are the subject of a civil suit or an administrative civil monetary penalty proceeding in which the state is already a party.
(b) (i) No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil or administrative hearing, audit, investigation, or from the news media, unless the action is brought by the Attorney General or district attorney or the person bringing the action is an original source of the information.
(ii) For purposes of this paragraph (b), "original source" means an individual who has direct and independent knowledge of the information on which the allegations are based and who has voluntarily provided the information to the state before filing an action under this section that is based on the information.
(5) The state is not liable for expenses that a person incurs in bringing an action under this section.
(6) Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by the employee's employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole. That relief shall include reinstatement with the same seniority status that the employee would have had except for the discrimination, two (2) times the amount of back pay, interest on the back pay, 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 an action in the appropriate court for the relief provided in this subsection.
SECTION 4. Section 43-13-205, Mississippi Code of 1972, is amended as follows:
43-13-205. (1) A person shall not knowingly make or cause to be made a false representation of a material fact in an application for Medicaid benefits.
(2) A person shall not knowingly make or cause to be made a false statement of a material fact for use in determining rights to a Medicaid benefit.
(3) A person who, having knowledge of the occurrence of an event affecting his initial or continued right to receive a Medicaid benefit, shall not conceal or fail to disclose that event with intent to obtain a Medicaid benefit to which the person or any other person is not entitled or in an amount greater than that to which the person or any other person is entitled.
(4) Violations of this section shall be subject to the provisions of Sections 1 through 3 of this act.
SECTION 5. Section 43-13-207, Mississippi Code of 1972, is amended as follows:
43-13-207. A person shall not solicit, offer or receive a kickback or bribe in the furnishing of goods or services for which payment is or may be made in whole or in part under the Medicaid program, or make or receive any such payment, or receive a rebate of a fee or charge for referring an individual to another person for the furnishing of those goods or services. The person shall be subject to the provisions of Sections 1 through 3 of this act.
SECTION 6. Section 43-13-209, Mississippi Code of 1972, is amended as follows:
43-13-209. A person shall not knowingly and wilfully make, induce or seek to induce the making of a false statement or false representation of a material fact with respect to the conditions or operation of an institution or facility in order that the institution or facility may qualify, upon initial certification or upon recertification, to receive Medicaid benefits as a hospital, skilled nursing facility, intermediate care facility or home health agency. The person shall be subject to the provisions of Sections 1 through 3 of this act.
SECTION 7. Section 43-13-211, Mississippi Code of 1972, is amended as follows:
43-13-211. A person shall not enter into an agreement, combination or conspiracy to defraud the state by obtaining or aiding another to obtain the payment or allowance of a false, fictitious or fraudulent claim for Medicaid benefits. The person shall be subject to the provisions of Sections 1 through 3 of this act.
SECTION 8. Section 43-13-213, Mississippi Code of 1972, is amended as follows:
43-13-213. A person shall not make, present or cause to be made or presented a claim for Medicaid benefits, knowing the claim to be false, fictitious or fraudulent. The person shall be subject to the provisions of Sections 1 through 3 of this act.
SECTION 9. Section 43-13-215, Mississippi Code of 1972, is amended as follows:
43-13-215. A person who violates any provision of Sections 43-13-205 through 43-13-213 shall be guilty of a felony, and, upon conviction thereof, shall be punished by imprisonment for not more than five (5) years, or by a fine of not more than Fifty Thousand Dollars ($50,000.00), or both. The person also shall be subject to the provisions of Sections 1 through 3 of this act. Sentences imposed for convictions of separate offenses under this act may run consecutively.
SECTION 10. This act shall take effect and be in force from and after July 1, 2007.