[PART II.]  QUI TAM ACTIONS OR RECOVERY OF

FALSE CLAIMS TO THE STATE

     §661-21  Actions for false claims to the State; qui tam actions.  (a)  Notwithstanding section 661-7 to the contrary, any person who:

     (1)  Knowingly presents, or causes to be presented, 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 material to a false or fraudulent claim;

     (3)  Has possession, custody, or control of property or money used, or to be used, by the State and, intending to defraud the State or to wilfully conceal the property, delivers, or causes to be delivered, less property than the amount for which the person receives a certificate or receipt;

     (4)  Is authorized to make or deliver a document certifying receipt of property used, or to be used by the State and, intending to defraud the State, makes or delivers the receipt without completely knowing that the information on the receipt is true;

     (5)  Knowingly buys, or receives as a pledge of an obligation or debt, public property from any officer or employee of the State who is not lawfully authorized to sell or pledge the property;

     (6)  Knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the State, or knowingly conceals, or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the State;

     (7)  Is a beneficiary of an inadvertent submission of a false claim to the State, who subsequently discovers the falsity of the claim, and fails to disclose the false claim to the State within a reasonable time after discovery of the false claim; or

     (8)  Conspires to commit any of the conduct described in this subsection,

shall be liable to the State for a civil penalty of not less than $11,463 and not more than $22,927, plus three times the amount of damages that the State sustains due to the act of that person; provided that for 2020 and annually thereafter, the minimum and maximum penalty amounts shall be the same as the minimum and maximum civil monetary penalty amounts authorized for the federal False Claims Act, title 31 United States Code section 3729, adjusted for cost-of-living adjustments and for the same effective dates, as adopted by the United States Department of Justice by federal rule in title 28 Code of Federal Regulations part 85, pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, P.L. 101-410, title 31 United States Code section 3717.

     (b)  If the court finds that a person who has violated subsection (a):

     (1)  Furnished officials of the State responsible for investigating false claims violations with all information known to the person about the violation within thirty days after the date on which the defendant first obtained the information;

     (2)  Fully cooperated with any state investigation of the violation; and

     (3)  At the time the person furnished the State with the information about the violation, no criminal prosecution, civil action, or administrative action had commenced under this title 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 times the amount of damages that the State sustains because of the act of the person.  A person violating subsection (a) shall also be liable to the State for the costs and attorneys' fees of a civil action brought to recover the penalty or damages.

     (c)  Liability under this section shall be joint and several for any act committed by two or more persons.

     (d)  This section shall not apply to any controversy involving an amount of less than $500 in value.  For purposes of this subsection, "controversy" means the aggregate of any one or more false claims submitted by the same person in violation of this part.  Proof of specific intent to defraud is not required.

     (e)  For purposes of this section:

     "Claim" means any request or demand, whether under a contract or otherwise, for money or property, and whether or not the State has title to the money or property, that is presented to an officer, employee, or agent of the State or is made to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the State's behalf or to advance a state program or interest, and if the State provides or has provided any portion of the money or property that is requested or demanded or will reimburse the contractor, grantee, or other recipient for any portion of the money or property that is requested or demanded.  "Claim" shall not include requests or demands for money or property that the State has paid to an individual as compensation for employment or as an income subsidy with no restrictions on that individual's use of the money or property.

     "Knowing" and "knowingly" means that a person, with respect to information:

     (1)  Has actual knowledge of the information;

     (2)  Acts in deliberate ignorance of the truth or falsity of the information; or

     (3)  Acts in reckless disregard of the truth or falsity of the information;

and no proof of specific intent to defraud is required.

     "Material" means having the tendency to influence or capability to influence the payment or receipt of money or property.

     "Obligation" means an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based or similar relationship, from statute, regulation, or administrative rule, or from the retention of any overpayment. [L 2000, c 126, pt of §1; am L 2001, c 55, §28(1); am L 2012, c 294, §6; am L 2019, c 68, §2]

Note

  The 2019 amendment applies to violations that occurred after November 2, 2015, and to assessments of civil penalties made after June 7, 2019.  L 2019, c 68, §3.

Case Notes

  Defendants' motion for summary judgment granted as to plaintiffs' claim under the federal and state False Claims Acts (claim analyzed under the federal Act); there were no genuine issues of material fact as to whether defendant knowingly submitted false claims to medicare under the "incident to" rules.  490 F. Supp. 2d 1062 (2007).

  Where plaintiffs' qui tam action, brought under the federal and state False Claims Acts, alleged that defendants submitted false claims to medicaid, defendants' motion for summary judgment granted; among other things, defendants did not submit facially false claims.  560 F. Supp. 2d 988 (2008).