MISSISSIPPI LEGISLATURE
2014 Regular Session
To: Insurance; Judiciary A
By: Representative Moak
AN ACT TO PROHIBIT FALSE CLAIMS AGAINST A STATE HEALTH PLAN; TO DEFINE CERTAIN TERMS; TO PROVIDE PENALTIES FOR MAKING FALSE CLAIMS; TO AUTHORIZE CIVIL ACTIONS UNDER THIS ACT; TO PROVIDE REMEDIES IN CIVIL ACTIONS; TO REQUIRE INVESTIGATIONS OF CLAIMS; TO AUTHORIZE STATE INTERVENTION; TO PROVIDE CERTAIN POWERS AND DUTIES OF THE COURTS UNDER THIS ACT; TO PROVIDE FOR DAMAGES; TO PROHIBIT RETALIATORY ACTIONS AND PROVIDE REMEDIES FOR RETALIATORY ACTIONS; TO REQUIRE DISCLOSURE; TO REQUIRE REPORTS TO THE LEGISLATURE; TO BRING FORWARD SECTIONS 25-15-3, 25-15-5, 43-13-203, 43-13-205, 43-13-211, 43-13-213, 43-13-215, 43-13-217, 43-13-219, 43-13-221, 43-13-223 AND 43-13-225, MISSISSIPPI CODE OF 1972, FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. In this act the following words have the meanings indicated:
(a) "Claim" means a request or demand, under a contract or otherwise, for money or other property, whether or not the state has title to the money or property, that is:
(i) Presented through a state health plan or a state health program to an officer, employee, or agent of the state; or
(ii) Made to a contractor, grantee, or other recipient, if the money or other property is to be spent or used on the state's behalf or to advance a state interest through a state health plan or state health program, and the state:
1. Provides or has provided any portion of the money or other property requested or demanded; or
2. Will reimburse the contractor, grantee, or other recipient for any portion of the money or other property that is requested or demanded.
"Claim" does not include requests or demands for money or other property that the state through a state health plan or state health program has paid to an individual as compensation for state employment or as an income subsidy with no restrictions on that individual's use of the money or other property.
(b) "Documentary material" includes:
(i) The original or a copy of:
1. A book;
2. A record;
3. A report;
4. A memorandum;
5. A paper;
6. A communication;
7. A tabulation;
8. A chart;
9. A document; or
10. Data compilation stored in or accessible through a computer or other information retrieval system, including instructions and all other materials necessary to use or interpret the data compilation; and
(ii) Any product of discovery, including:
1. The original or duplicate of any deposition, interrogatory, document, thing, result of an inspection of land or other property, examination, or admission that is obtained by any method of discovery in any judicial or administrative proceeding of an adversarial nature;
2. Any digest, analysis, selection, compilation, or derivation of any item listed in item 1. of this subparagraph; and
3. Any index or other manner of access to any item listed in item 1. of this subparagraph.
(c) "Employee" means an individual who performs services:
(i) For and under the control and direction of an employer; and
(ii) Under an employer's promise or implied promise of payment of wages or other remuneration.
(d) "Employer" means a person or group of persons who, acting directly or indirectly on behalf of another person or group of persons:
(i) Allows an employee to perform services under the employer's control and direction; and
(ii) Promises or implies that the employee will receive wages or other remuneration in payment for the performance of those services.
(e) "Knowing" or "knowingly" means, with respect to information and without requiring proof of specific intent to defraud, that a person:
(i) Has actual knowledge of the information;
(ii) Acts in deliberate ignorance of the truth or falsity of the information; or
(iii) Acts in reckless disregard of the truth or falsity of the information.
"Knowing" or "knowingly" does not mean, with respect to information, that a person acts in a manner that constitutes mistake or negligence.
(f) "Material" means having a natural tendency to influence or be capable of influencing the payment or receipt of money or other property.
(g) "Obligation" means an established duty, whether or not fixed, arising from:
(i) An express or implied:
1. Contractual relationship;
2. Grantor–grantee relationship; or
3. Licensor–licensee relationship;
(ii) A fee–based or similar relationship;
(iii) Statute or regulation; or
(iv) The retention of an overpayment.
(h) "Provider" means:
(i) An individual licensed or certified to provide health care;
(ii) A licensed facility that provides health care to individuals;
(iii) Any other person or entity that provides health care, products or services to a program recipient; or
(iv) A contractor, subcontractor, or vendor who directly or indirectly provides the department or its recipients supplies, drugs, equipment or services.
(i) "Public body" means:
1. The Legislature or any other elected body;
2. A member or an employee of the Legislature or other elected body;
3. A state court;
4. A member or an employee of a state court;
5. A state or local regulatory, administrative, or public agency or authority;
6. An instrumentality of a state or local regulatory, administrative or public agency or authority;
7. A state or local law enforcement agency, prosecutorial office or police or peace officer;
8. A state or local department of an executive branch of government; or
9. A division, board, bureau, office, committee or commission of any of the public bodies listed in this paragraph.
(j) "Retaliatory action" means:
(i) Discharging, suspending, demoting, threatening, harassing or discriminating against an employee, contractor or agent; or
(ii) Any other adverse action taken against an employee, contractor or agent relating to the conditions of employment, contract or agency.
(k) "State health plan" means:
(i) The state and school employees life and health insurance plan;
(ii) A medical assistance plan established by the state; or
(iii) A private health insurance carrier, health maintenance organization, managed care organization, health care cooperative or alliance, or another person that provides or contracts to provide health care services that are wholly or partially reimbursed by, or are a required benefit of, a health plan established in accordance with the federal Social Security Act of 1939, as amended, or by the state.
"State health plan" includes a person who provides or contracts or subcontracts to provide health care services for an entity described in this paragraph.
(l) "Supervisor" means an individual within an employer's organization who has the authority to:
(i) Direct and control the work performance of an employee; or
(ii) Take corrective action regarding the violation of a law or regulation that is the subject of a complaint or charge under this act.
SECTION 2. (1) A person may not:
(a) Knowingly present or cause to be presented a false or fraudulent claim for payment or approval;
(b) Knowingly make, use or cause to be made or used a false record or statement material to a false or fraudulent claim;
(c) Conspire to commit a violation under this subtitle;
(d) Have possession, custody or control of money or other property used by or on behalf of the state under a state health plan or a state health program and knowingly deliver or cause to be delivered to the state less than all of that money or other property;
(e) (i) Be authorized to make or deliver a receipt or other document certifying receipt of money or other property used or to be used by the state under a state health plan or a state health program; and
(ii) Intending to defraud the state or the department, make or deliver a receipt or document knowing that the information contained in the receipt or document is not true;
(f) Knowingly buy or receive as a pledge of an obligation or debt publicly owned property from an officer, employee or agent of a state health plan or a state health program who lawfully may not sell or pledge the property;
(g) Knowingly make, use or cause to be made or used, a false record or statement material to an obligation to pay or transmit money or other property to the state;
(h) Knowingly conceal, or knowingly and improperly avoid or decrease, an obligation to pay or transmit money or other property to the state; or
(i) Knowingly make any other false or fraudulent claim against a state health plan or a state health program.
(2) (a) Except as provided in paragraph (b) of this subsection, a person who is found to have violated subsection (1) of this section is liable to the state for:
(i) A civil penalty of not less than five thousand dollars ($5,000.00) and not more than ten thousand dollars ($10,000.00) for each violation of subsection (1) of this section; and
(ii) An additional amount of not more than three (3) times the amount of damages that the state sustains as a result of the acts of that person in violation of subsection (1) of this section.
(b) As an alternative to paragraph (a) of this subsection, a court may assess not less than two (2) times the amount of damages that the state sustains as a result of a person's acts in violation of subsection (1) of this section, and no civil penalty, if the court finds that:
(i) The person committing the violation provided state officials responsible for investigating false claims violations involving state health plans or state health programs with any information about the violation known to the person within thirty (30) days after the date on which the person first obtained the information;
(ii) The person cooperated fully with any state investigation of the violation; and
(iii) At the time the person provided the state with the information about the violation:
1. No criminal prosecution, civil action or administrative action relating to the same violation had been initiated; and
2. The person did not have actual prior knowledge of the existence of an investigation of the violation.
(c) The total amount owed by a person under paragraph (a) of this subsection may not be less than the amount of the actual damages the state health plan or state health program incurs as a result of the person's violation of subsection (1) of this section.
(3) (a) In determining the appropriate amount of fines and damages under subsection (2) of this section, the court shall consider:
(i) The number, nature and severity of the violations of this act for which the person has been found liable;
(ii) The number, nature and severity of any previous violations of this act;
(iii) The degree of loss suffered by the state health plan or state health program;
(iv) The person's history of billing compliance;
(v) whether the person has a compliance program in place;
(vi) The extent to which the person has taken steps to address and correct the violation since the person became aware of the violation;
(vii) The extent to which the violation caused harm or detriment to patients or consumers of the state health plan or state health program;
(viii) Any funds previously returned to the state health plan or state health program in compliance with federal requirements regarding overpayments, to the extent the funds represented losses to the state health plan or state health program caused by the violation;
(ix) Whether the person self–reported the violation, the timeliness of the self–reporting, the extent to which the person otherwise cooperated in the investigation of the violation, and the extent to which the person had prior knowledge of an investigation or other action relating to the violation; and
(x) Any other factor as justice requires.
(b) In weighing the factors set forth in paragraph (a) of this subsection, the court shall, where appropriate, give special consideration to:
(i) The extent to which the person's operations or financial condition may have affected each of the factors set forth in paragraph (a) of this subsection; and
(ii) The extent to which the person's operations or financial condition may affect the person's ability to provide care and continue operations after payment of damages and fines.
(4) The penalties provided in subsection (2) of this section are in addition to any criminal, civil or administrative penalties provided under any other state or federal statute or regulation.
SECTION 3. (1) If the state finds that a person has violated or is violating Section 2 (1) of this act, the state may file a civil action in a court of competent jurisdiction within the state against the person.
(2) In filing a civil action under this section, the state may seek:
(a) The penalties provided under Section 2(2) of this act; and
(b) Compensatory damages to compensate the state for injuries incurred as a direct result of a violation of Section 2(1) of this act; and
(c) Subject to the guidelines set forth in Section 5(1)(d) of this act, court costs and attorney's fees.
SECTION 4. (1) (a) (i) A person may file a civil action on behalf of the person and the state in a court of competent jurisdiction within the state against a person who has acted or is acting in violation of Section 2(1) of this act.
(ii) A civil action filed under subparagraph (i) of this paragraph shall be brought in the name of the state.
(b) A person filing an action under this section may seek:
(i) Any remedy available in common law tort;
(ii) The penalties provided under Section 2(2) of this act;
(iii) Compensatory damages to compensate the state for injuries incurred as a direct result of a violation of Section 2(1) of this act; and
(iv) Subject to the guidelines set forth in Section 5(1)(d) of this act, court costs and attorney's fees.
(c) (i) The person shall serve on the state a copy of the complaint and a written disclosure of substantially all material evidence and information that the person possesses, in accordance with the provisions of the Mississippi rules of civil procedure for serving process on the state.
(ii) 1. The complaint shall be filed in camera and shall remain under seal for at least sixty (60) days.
2. The complaint may not be served on the defendant until the complaint is unsealed and the court orders the complaint served.
3. Within sixty (60 days) after the state receives the complaint and the material evidence and information, the state may elect to intervene and proceed with the action.
(d) (i) For good cause shown, the state may move the court for extensions of the time during which the complaint remains under seal under paragraph (c)(ii)1. of this subsection.
(ii) Any motions made under subparagraph (i) of this paragraph may be supported by affidavits or other submissions in camera.
(e) (i) The defendant may not be required to answer a complaint filed under this section until after the complaint is:
1. Unsealed and ordered by the court to be served; and
2. Served on the defendant in accordance with the Mississippi rules of civil procedure.
(ii) When answering a complaint filed under this section, a defendant shall follow the time frames and other provisions for filing answers to a complaint as required under the Mississippi rules of civil procedure.
(iii) During the period in which the complaint is under seal, if the state's investigation reveals that the act, transaction or occurrence that gave rise to the alleged violation of this act is reasonably likely to be continuing, the state shall notify the defendant as soon as practicable without jeopardizing the course and conduct of the state's or the federal government's investigation of the violation, compromising the development of evidence or violating any state or federal law.
(f) Before the later of the expiration of the 60–day period during which the complaint remains under seal under paragraph (c)(ii)1. of this subsection or any extension of the 60-day period obtained under paragraph (d) of this subsection, the state shall:
(i) Intervene and proceed with the action in a court of competent jurisdiction within the state; or
(ii) Notify the court that it will not intervene and proceed with the action.
(g) If the state does not elect to intervene and proceed with the action under paragraph (f) of this subsection, before unsealing the complaint, the court shall dismiss the action.
(h) If a person initiates an action under this section, no person other than the state may intervene in the action or initiate a related action based on the facts underlying the pending action.
(2) (a) If the state intervenes and proceeds with the action under subsection (1)(f)(i) of this section:
(i) The state shall have the primary responsibility for proceeding with the action and may not be bound by any act of the person who initiated the action; and
(ii) Subject to paragraphs (c) through (f) of this subsection, the person who initiated the action may continue as a party to the action.
(b) (i) During an investigation by the state conducted either independently or in conjunction with a civil action filed under this act, the Attorney General shall have the same rights of discovery as a civil litigant in the circuit court under the Mississippi rules of civil procedure.
(ii) A person from whom the Attorney General seeks discovery shall be considered a party.
(c) (i) Notwithstanding the objections of the person initiating the action, the state may petition the court to dismiss an action if it elects at any point to withdraw its intervention as a party to the action.
(ii) If the state elects to withdraw as a party to the action:
1. The state shall notify the court and the party initiating the action; and
2. The court shall dismiss the action.
(iii) The person initiating the action shall be notified by the state of the filing of the motion to dismiss.
(iv) The court shall provide the person initiating the action with an opportunity for a hearing on the motion to dismiss.
(d) Notwithstanding the objections of the person initiating the action, if the court determines after a hearing that a proposed settlement is fair, adequate and reasonable under the circumstances, the state may settle a civil action filed under this section.
(e) On motion of the state or the defendant or on the court's own motion, the court may impose limitations on the participation of the person initiating an action under this section if:
(i) The state shows that the person's unrestricted participation in the action would:
1. Interfere with or unduly delay the state in its pursuit of the civil action; or
2. Be repetitious, irrelevant or harassing to the defendant; or
(ii) The defendant shows that unrestricted participation by the person initiating the action would harass the defendant or cause the defendant undue burden or unnecessary expense.
(f) Limitations imposed by the court under paragraph (e) of this subsection may include:
(i) A limitation on the number of witnesses the person may call to testify;
(ii) A limitation on the length of the testimony of witnesses called by the person;
(iii) A limitation on the person's cross-examination of witnesses; or
(iv) A limitation on the participation of the person in the litigation.
(3) (a) If the state elects not to intervene and proceed with the action under subsection (1)(f)(ii) of this section, the person initiating the action shall have the right to proceed with the action.
(b) Notwithstanding the state's election not to intervene, if the state requests, the court shall order that the state be served at the state's own expense with copies of:
(i) All pleadings filed in the action; and
(ii) All deposition transcripts.
(c) (i) If a person proceeds with an action under paragraph (a) of this subsection, the court, without limiting the status and rights of the person initiating the action, may allow the state to intervene at a later date on a showing of good cause.
(ii) If the state subsequently intervenes under subparagraph (i) of this paragraph, the person initiating the action shall thereafter be subject to the limitations provided under subsection (2)(c) through (f) of this section.
(4) (a) Instead of proceeding with a civil action filed under this act, the state may pursue any alternative remedy available to the state, including any appropriate administrative proceeding to determine a civil money penalty.
(b) If the state seeks an alternative remedy in another proceeding after intervening in a civil action filed under this section, the person initiating the action shall have the same rights in the alternative proceeding as the person would have had if the civil action had continued under this section.
(c) (i) A finding of fact or conclusion of law made in any alternative proceeding that has become final shall be conclusive on all parties to an action filed under this act.
(ii) For purposes of subparagraph (i) of this paragraph, a finding or conclusion is final if:
1. It has been finally determined on appeal to the appropriate court of the state;
2. All time for filing the appeal with respect to the finding or conclusion has expired; or
3. The finding or conclusion is not subject to judicial review.
(5) (a) Whether or not the state intervenes and proceeds with a civil action filed under this section, on a showing in camera 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.
(b) The court may extend the 60–day period on a further showing in camera that:
(i) The state has pursued the criminal or civil investigation or proceeding with reasonable diligence; and
(ii) Any proposed discovery in the civil action will interfere with the ongoing criminal or civil investigation or proceeding.
SECTION 5. (1) (a) If the state intervenes and proceeds with an action filed under Section 4 of this act and the state prevails, the court shall award the person initiating the action an amount that is:
(i) Not less than fifteen percent (15%) and not more than twenty-five percent (25%) of the proceeds of the action or settlement of the claim; and
(ii) Proportional to the amount of time and effort that the person substantially contributed to the final resolution of the civil action.
(b) (i) If the court finds that the action is based primarily on disclosures of specific information relating to allegations or transactions in a criminal, civil or administrative hearing, in a legislative or administrative report, hearing, audit or investigation or from the news media, the court may make an award to the person initiating the action that:
1. The court considers appropriate, taking into account the significance of the information and the role of the person initiating the action in advancing the case to litigation; and
2. Does not exceed ten percent (10%) of the proceeds of the action.
(ii) The information described in subparagraph (i) of this paragraph does not include information disclosed and provided by the person initiating the action.
(c) Any payment to a person under paragraph (a) or (b) of this subsection shall be made from the proceeds of the action.
(d) (i) In addition to the amount provided under paragraphs (a) and (b) of this subsection, a court may award the person initiating the action:
1. An amount for reasonable expenses that the court finds to have been necessarily incurred; and
2. Reasonable attorney's fees and costs.
(ii) In determining the amount of any award under subparagraph (1) of this paragraph, the court shall consider the amount of any penalties and damages recovered in the action and any other factor as justice may require.
(iii) All expenses, fees and costs awarded under this paragraph shall be awarded against the defendant.
(2) (a) If the state does not intervene and proceed with an action filed under Section 4 of this act and the person initiating the action prevails, the court shall award the person initiating the action an amount that is reasonable for collecting the civil penalty and damages on the state's behalf.
(b) An amount awarded under paragraph (a) of this subsection shall be:
(i) Not less than twenty-five percent (25%) or more than thirty percent (30%) of the proceeds of the action or settlement of the claim; and
(ii) Paid out of the proceeds of the action.
(c) (i) The court also shall award the person initiating the action:
1. An amount for reasonable expenses that the court finds to have been necessarily incurred; and
2. Reasonable attorney's fees and costs.
(ii) All expenses, fees and costs awarded under this paragraph shall be awarded against the defendant.
(3) (a) Whether or not the state intervenes and proceeds with an action filed under Section 4 of this act, if a court finds that the action is initiated by a person who planned and initiated or otherwise deliberately participated in the violation on which the action was based, the court may, to the extent it considers appropriate, reduce the share of the proceeds of the action that the person otherwise would have received under this section.
(b) In reducing the share of the proceeds of the person initiating the action under this subsection, the court shall consider:
(i) The role of the person in advancing the case to litigation; and
(ii) Any relevant circumstances relating to the underlying violation.
(c) (i) If the person initiating a civil action under Section 4 of this act is convicted of criminal conduct arising from the person's participation in the violation on which the action was based prior to a final determination of the action, the person:
1. Shall be dismissed from the action; and
2. May not receive any share of the proceeds of the action.
(ii) The dismissal of the person initiating the action in accordance with this paragraph does not prejudice the right of the state to continue the action.
(d) If the person initiating a civil action under Section 4 of this act is convicted of criminal conduct arising from the person's participation in the violation on which the action was based after the proceeds from the action are awarded to that person, the court shall order the person to repay the proceeds previously awarded.
(4) A court may award reasonable attorney's fees and expenses to a defendant and against the person initiating the action if:
(a) The defendant prevails in the action; and
(b) The court finds that the claim of the person initiating the action was clearly frivolous, vexatious or brought primarily for purposes of harassment or otherwise brought in bad faith; and
(c) The state did not intervene and proceed with the action, and the person initiating the action conducted the action.
SECTION 6. (1) No court in this state shall have jurisdiction over an action filed under Section 4 of this act against any member of the legislative branch or the judiciary of the state, any member of the Governor's staff, the Attorney General, the Department of Revenue or the State Treasurer if the action is based on evidence or information known to the state when the action was filed.
(2) A civil action may not be brought under this act by a person who is or was a public employee or public official if the allegations of the action are based substantially on:
(a) Allegations of wrongdoing or misconduct that the person had a duty or obligation to report or investigate within the scope of the person's public employment or office; or
(b) Information or records to which the person had access as a result of the person's public employment or office.
(3) A person may not bring an action under Section 4 of this act that is based on allegations or transactions that are the subject of a civil suit or an administrative civil money penalty proceeding in which the state is already a party.
(4) (a) Except as provided in paragraphs (b) and (c) of this subsection, no court in this state shall have jurisdiction over an action filed under Section 4 of this act that is based on the public disclosure of allegations or transactions:
(i) In a criminal, civil or an administrative hearing;
(ii) In a legislative or an administrative report, a hearing, an audit or an investigation; or
(iii) From the news media.
(b) Paragraph (a) of this subsection does not apply if the action is initiated by a person who:
(i) Has direct and independent knowledge of the information on which the allegations are based; and
(ii) Has voluntarily provided the information to the state before filing an action under Section 4 of this act that is based on the information.
(c) The state, through the Attorney General, may file a civil action under Section 3 of this act based on the public disclosure described in paragraph (a) of this subsection.
(5) The state is not liable for expenses that a person incurs in bringing an action under Section 4 of this act.
(6) A person who is or was employed by the state, a local government, or any other political subdivision of the state as an auditor, investigator, attorney, financial officer, or contracting officer may not bring an action under Section 4 of this act that is based on allegations or transactions that the person discovered or learned of while acting in the person's capacity as an auditor, investigator, attorney, financial officer or contracting officer for the state, local government or other political subdivision of the state.
SECTION 7. (1) A person may not take a retaliatory action against an employee, contractor or grantee because the employee, contractor or grantee:
(a) Acts lawfully in furtherance of an action filed under this act, including an investigation for, initiation of, testimony for or assistance in an action filed or to be filed under this act;
(b) Discloses or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the person that the employee, contractor or grantee reasonably believes is in violation of Section 2(1) of this act or a regulation adopted under this act;
(c) Provides information to, or testifies before, a public body conducting an investigation, hearing or inquiry into a violation of Section 2(1) of this act or a regulation adopted under this act that is allegedly or actually committed by the person; or
(d) Objects to or refuses to participate in any activity, policy or practice that the employee, contractor or grantee reasonably believes is in violation of Section 2(1) of this act or a regulation adopted under this act.
(2) (a) An employee, contractor or grantee may file a civil action against a person other than a supervisor in state government, an appointing authority in state government or the head of a principal unit in state government if the person takes a retaliatory action against the employee, contractor or grantee in violation of subsection (1) of this section.
(b) The employee, contractor or grantee may seek in the civil action:
(i) An injunction to restrain a continuing violation of subsection (1) of this section;
(ii) Reinstatement to the same seniority status held before the retaliatory action;
(iii) Reinstatement of full fringe benefits and seniority rights;
(iv) Two (2) times the amount of lost wages, benefits and other remuneration, including any interest accumulated;
(v) Payment by the person of reasonable costs and attorney's fees;
(vi) Punitive damages;
(vii) An assessment of a civil penalty:
1. Not exceeding One Thousand Dollars ($1,000.00) for the first violation; and
2. Not exceeding Five Thousand Dollars ($5,000.00) for each subsequent violation; and
(viii) Any other relief necessary to make the employee, contractor or grantee whole.
(c) The remedies provided under this section do not diminish or affect the rights, privileges or remedies available to the employee, contractor or grantee under:
(i) Any other federal or state statute or regulation; or
(ii) Any collective bargaining agreement or employee contract.
(3) This section does not apply to a state employee.
(4) (a) An employee who is subject to retaliatory action in
violation of subsection (1) of this section may file a civil action.
(b) A state employee who is subject to retaliatory action in violation of subsection (1) of this section may file a complaint to seek redress.
SECTION 8. An employer shall:
(a) Conspicuously display notices of the protections provided to and obligations required of its employees under this act; and
(b) Use any appropriate means to inform its employees of the protections and obligations provided under this act.
SECTION 9. (1) A civil action filed under Section 4 of this act may not be filed after the later of:
(a) Six (6) years after the date on which the underlying violation of Section 2(1) of this act occurred; or
(b) Three (3) years after the date when facts material to the right of action are known by the director of the state's Medicaid fraud control unit or reasonably should have been known, but in no event more than ten (10) years after the date on which the underlying violation of Section 2(1) of this act is committed.
(2) A civil action may be filed under Section 4 of this act for activity that occurred prior to July 1, 2013, if the limitations period under subsection (1) of this section has not lapsed.
(3) If the state elects to intervene and proceed with an action brought under this act, the state, through the office of the Attorney General, may:
(a) File its own complaint; or
(b) Amend the complaint of the person who brought the action to clarify, add detail to the complaint, or add additional claims to the complaint.
(4) To the extent that the claim of the state arises out of the conduct, transactions, or occurrences set forth, or attempted to be set forth by a person, a state pleading relates back to the filing date of the complaint of the person who originally brought the action.
(5) In an action filed under this act, all essential elements of the cause of action, including damages, shall be proven by a preponderance of the evidence.
(6) Notwithstanding any other provision of law or rule of procedure or evidence in the Mississippi rules, a final judgment rendered in favor of the state in any criminal proceeding charging fraud or false statements, whether on a verdict after trial or on a plea of guilty or nolo contendere, shall stop the defendant from denying the essential elements of the offense in any action filed under this subtitle that involves the same act, transaction, or occurrence as in the criminal proceeding.
SECTION 10. (1) Any remedy provided under this act is in addition to any other appropriate legal or equitable relief provided under any other applicable state or federal statute or regulation.
(2) (a) The state shall make all reasonable efforts to coordinate any investigation of an alleged violation under this act with any investigation conducted by the federal government involving the same violation.
(b) The state's objective shall be to avoid unnecessary duplication of effort on the part of the person alleged to have committed the violation and to minimize the burden of the investigation on the person.
(3) The State Treasurer shall deposit any civil penalty or damages collected under this act in the general fund of the state.
(4) The Attorney General may adopt regulations to carry out the provisions of this act.
SECTION 11. (1) Beginning July 1, 2014, the Attorney General shall report annually to the Legislature the following information for the previous fiscal year:
(a) The number of civil actions filed under this act;
(b) The number of civil actions under this act in which a judgment was entered, whether by settlement or adjudication; and
(c) The number of claims made by the state based on alleged violations of Section 2(1) of this act that are settled without the filing of a civil action under this act.
(2) Unless the action is under seal in accordance with Section 4 of this act, for each civil action reported under subsection (1)(a) or (b) of this section, the report shall state:
(a) Whether the action was filed by the state or by a person on behalf of the state and, if filed by a person, whether the state intervened and proceeded with the action;
(b) The name of the defendant; and the following information about the defendant:
(i) The number of employees and any other data relevant to the size of the defendant;
(ii) The amount of payments made to the defendant in the year prior to the filing of the action from state health plans and, to the extent known by the Attorney General and the Medicaid fraud control unit, from other sources; and
(iii) Whether the defendant is a minority–owned business enterprise;
(c) A description of the violation or alleged violation of Section 2 of this act; and
(d) The amount sought in the action and, if applicable, the amount for which the defendant is liable under a settlement agreement or court order.
(3) For each claim reported under subsection (1)(c) of this section, the report shall state:
(a) A description of the violation or alleged violation of Section 2 of this act;
(b) The resolution of the claim;
(c) The amount, if any, the person against whom the claim was made agreed to pay in settlement of the claim; and
(d) The amount, if any, collected by the state.
SECTION 12. Section 25-15-3, Mississippi Code of 1972, is brought forward as follows:
[Through June 30 of the year in which Section 25-11-143 becomes effective as provided in subsection (1) of Section 25-11-143, this section shall read as follows:]
25-15-3. For the purposes of this article, the words and phrases used herein shall have the following meanings:
(a) "Employee" means a person who works full time for the State of Mississippi and receives his compensation in a direct payment from a department, agency or institution of the state government and any person who works full time for any school district, community/junior college, public library or university-based program authorized under Section 37-23-31 for deaf, aphasic and emotionally disturbed children or any regular nonstudent bus driver. This shall include legislators, employees of the legislative branch and the judicial branch of the state and "employees" shall include full-time salaried judges and full-time district attorneys and their staff and full-time compulsory school attendance officers. For the purposes of this article, any "employee" making contributions to the State of Mississippi retirement plan shall be considered a full-time employee.
(b) "Department" means the Department of Finance and Administration.
(c) "Plan" means the State and School Employees Life and Health Insurance Plan created under this article.
(d) "Fund" means the State and School Employees Insurance Fund set up under this article.
(e) "Retiree" means any employee retired under the Mississippi retirement plan.
(f) "Board" means the State and School Employees Health Insurance Management Board created under Section 25-15-303.
[From and after July 1 of the year in which Section 25-11-143 becomes effective as provided in subsection (1) of Section 25-11-143, this section shall read as follows:]
25-15-3. For the purposes of this article, the words and phrases used in this section shall have the following meanings:
(a) "Employee" means a person who works full time for the State of Mississippi and receives his compensation in a direct payment from a department, agency or institution of the state government, and any person who works full time for any school district, community/junior college, public library, university-based program authorized under Section 37-23-31 for deaf, aphasic and emotionally disturbed children, or any regular nonstudent bus driver. This term includes legislators, employees of the legislative branch and the judicial branch of the state, full-time salaried judges and full-time district attorneys and their staff, and full-time compulsory school attendance officers. For the purposes of this article, any "employee" making contributions to the Public Employees' Retirement System or the Highway Safety Patrol Retirement System shall be considered a full-time employee.
(b) "Department" means the Department of Finance and Administration.
(c) "Plan" means the State and School Employees Life and Health Insurance Plan created under this article.
(d) "Fund" means the State and School Employees Insurance Fund set up under this article.
(e) "Board" means the State and School Employees Health Insurance Management Board created under Section 25-15-303.
SECTION 13. Section 25-15-5, Mississippi Code of 1972, is brought forward as follows:
25-15-5. (1) The board shall administer the plan and is authorized to adopt and promulgate rules and regulations for its administration, subject to the terms and limitations contained in this article.
(2) The board shall develop a five-year strategic plan for the insurance plan established by Section 25-15-3 et seq. The strategic plan shall address, but not be limited to:
(a) Changing trends in the health care industry, and how they effect delivery of services to members of the plan.
(b) Alternative service delivery systems.
(c) Any foreseeable problems with the present system of delivering and administering health care benefits in Mississippi.
(d) The development of options and recommendations for changes in the plan.
(3) To carry out the requirements of subsection (2) of this section, the board may conduct formal research, including questionnaires and attitudinal surveys of members' needs and preferences with respect to service delivery.
(4) After the board has complied with all provisions of Section 25-15-9 regarding the establishment of the plan, it shall be responsible for fully disclosing to plan members the provisions of the plan. Such disclosure shall consist of the dissemination of educational material on the plan and any proposed changes thereto. The board shall provide members with complete educational materials at least thirty (30) days before the date upon which the plan's members must select a plan option for health care services. The board shall further use the resources of the Mississippi Authority for Educational Television or other state agency, university or college to provide information on proposed changes. The board may also use other state-owned media, as well as public service announcements on private media to disseminate information regarding proposed changes in the plan.
(5) The board shall develop and make available for public review at its offices a comprehensive plan document which documents all benefits for which members of the plan created by Section 25-15-3 et seq. are eligible. This document shall be typed and maintained also at the offices of any administrator contracted with in accordance with Section 25-15-301.
(6) (a) The board may enter into contracts with accountants, actuaries and other persons from the private sector whose skills are necessary to carry out the purposes of Section 25-15-3 et seq.
(b) Before the board enters into any contract for services as provided in paragraph (a) of this subsection, the board shall first determine that the services are required, and that the staff of the board and personnel of other state agencies are not sufficiently experienced to provide the services.
(c) If the service is to be rendered for a period of in excess of six (6) months, the board shall seek and obtain bids for the service in a manner identical to that provided for in Section 25-15-301, subsection (1)(a) and (b) except for those provisions which specifically state criteria which are applicable only to third-party administrators contracted with in accordance with Section 25-15-3 et seq.
(d) The board is also authorized to procure legal services if it deems these services to be necessary to carry out its responsibilities under Section 25-15-3 et seq.
SECTION 14. Section 43-13-203, Mississippi Code of 1972, is brought forward as follows:
43-13-203. As used in this article:
(a) "Benefit" means the receipt of money, goods, services or anything of pecuniary value.
(b) "False statement" or "false representation" means a statement or representation knowingly and willfully made by a person knowing of the falsity of the statement or representation.
(c) "Knowing" and "knowingly" means that a person is aware of the nature of his conduct and that such conduct is substantially certain to cause the intended result.
(d) "Medicaid benefit" means a benefit paid or payable under the Medicaid program established under Section 43-13-101 et seq.
(e) "Person" means an individual, corporation, unincorporated association, partnership or other form of business association.
SECTION 15. Section 43-13-205, Mississippi Code of 1972, is brought forward 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.
SECTION 16. Section 43-13-211, Mississippi Code of 1972, is brought forward 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.
SECTION 17. Section 43-13-213, Mississippi Code of 1972, is brought forward 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.
SECTION 18. Section 43-13-215, Mississippi Code of 1972, is brought forward 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. Sentences imposed for convictions of separate offenses under this article may run consecutively.
SECTION 19. Section 43-13-217, Mississippi Code of 1972, is brought forward as follows:
43-13-217. In any prosecution under this article, it shall not be necessary to show that the person had knowledge of similar acts having been performed in the past on the part of persons acting on his behalf, nor to show that the person had actual notice that the acts by persons acting on his behalf occurred, in order to establish the fact that a false statement or representation was knowingly made.
SECTION 20. Section 43-13-219, Mississippi Code of 1972, is brought forward as follows:
43-13-219. There is hereby created within the Office of the Attorney General a "Medicaid Fraud Control Unit." The unit shall consist of a director appointed by the Attorney General and such attorneys, auditors, investigator and other such personnel as are necessary to conduct the activities of the unit.
SECTION 21. Section 43-13-221, Mississippi Code of 1972, is brought forward as follows:
43-13-221. 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.
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.
SECTION 22. Section 43-13-223, Mississippi Code of 1972, is brought forward as follows:
43-13-223. (1) An 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) Process issued by a court in which an action is filed may be served anywhere in the state.
SECTION 23. Section 43-13-225, Mississippi Code of 1972, is brought forward 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.
SECTION 24. This act shall take effect and be in force from and after July 1, 2014.