Alaska Medical Assistance False Claim and Reporting Act

All sections added by SLA 2016, ch. 25, § 18, eff. Sept. 19, 2016.

Current through the 2018 Second Regular Session of the 30th Legislature.

 

AK ST § 09.58.010. False claims for medical assistance; civil penalty

 

(a) A medical assistance provider or medical assistance recipient may not

(1) knowingly submit, authorize, or cause to be submitted to an officer or employee of the state a false or fraudulent claim for payment or approval under the medical assistance program;

(2) knowingly make, use, or cause to be made or used, directly or indirectly, a false record or statement to get a false or fraudulent claim for payment paid or approved by the state under the medical assistance program;

(3) conspire to defraud the state by getting a false or fraudulent claim paid or approved under the medical assistance program;

(4) knowingly make, use, or cause to be made or used, a false record or statement to conceal, avoid, increase, or decrease an obligation to pay or transmit money or property to the medical assistance program;

(5) knowingly enter into an agreement, contract, or understanding with an officer or employee of the state for approval or payment of a claim under the medical assistance program knowing that the information in the agreement, contract, or understanding is false or fraudulent.

(b) A beneficiary of an intentional or inadvertent submission of a false or fraudulent claim under the medical assistance program who later discovers the claim is false or fraudulent shall disclose the false or fraudulent claim to the state not later than 60 days after discovering the false claim.

 

(c) In addition to any criminal penalties under AS 47.05, a medical assistance provider or medical assistance recipient who violates (a) or (b) of this section shall be liable to the state in a civil action for

(1) a civil penalty of not less than $5,500 and not more than $11,000;

(2) three times the amount of actual damages sustained by the state;

(3) full reasonable attorney fees and costs in a case involving a fraudulent claim, agreement, contract, or understanding; and

(4) reasonable attorney fees and costs calculated under applicable court rules in a case that does not involve a fraudulent claim, agreement, contract, or understanding.

(d) Liability for actual damages under (c) of this section may be reduced to not less than twice the amount of actual damages that the state sustains if the court finds that a person liable for an act under (a) or (b) of this section

(1) furnished the attorney general or the Department of Health and Social Services with all information known to the person about the violation not later than 30 days after the date the information was obtained;

(2) fully cooperated with the investigation of the violation under AS 09.58.020;

(3) at the time the person furnished the attorney general with the information about the violation, no criminal prosecution, civil action, investigation, or administrative action had been started in this state with respect to the violation, and the person did not have actual knowledge of the existence of an investigation of the violation.

 

(e) A corporation, partnership, or other individual is liable under this section for acts of its agents if the agent acted with apparent authority, regardless of whether the agent acted, in whole or in part, to benefit the principal and regardless of whether the principal adopted or ratified the agent’s claims, representations, statement, or other action or conduct.

 

<Text of subsec. (f) effective upon certification. See, Historical and Statutory notes for certification.>

 

(f) Notwithstanding (e) of this section, a corporation, partnership, or other individual is not liable under this section for acts of its agents if the evidence shows that the agent or apparent agent acted with intent to deceive the principal.

 

09.58.015. Attorney general investigation; civil action

(a) The attorney general or the Department of Health and Social Services may investigate an alleged violation of AS 09.58.010. The attorney general may request assistance from the Department of Health and Social Services in an investigation under this section.

 

<Text of subsec. (b) effective until July 1, 2019. See, also, text of subsec. (b) effective July 1, 2019.>

 

(b) The attorney general may bring a civil action in superior court under AS 09.58.010–09.58.060.

<Text of subsec. (b) effective July 1, 2019. See, also, text of subsec. (b) effective until July 1, 2019.>

 

(b) The attorney general may bring a civil action in superior court under AS 09.58.010–09.58.025.

 

Amended by SLA 2017, ch. 3, § 3, eff. July 1, 2019.

 

09.58.020. Private plaintiff; civil action

(a) Notwithstanding AS 09.58.015, a person may bring an action under this section for a violation of AS 09.58.010 in the name of the person and the state.

 

(b) To bring an action under this section, a person shall file a complaint, in camera and under seal, and serve on the attorney general

(1) a copy of the complaint; and

(2) written disclosure of substantially all material evidence and information the person possesses that pertains to the claim.

 

(c) A complaint filed under this section must remain under seal for at least 60 days and may not be served on the defendant until the court so orders. The attorney general may elect to intervene and proceed with the action within 60 days after the attorney general receives the complaint, the material evidence, and the information required under (b) of this section. The attorney general may, for good cause shown, move the court, under seal, for an extension of the time during which the complaint remains under seal under this subsection.

 

(d) Before the expiration of the 60-day period or an extension of time granted under (c) of this section, the attorney general shall conduct an investigation and make a written determination as to whether substantial evidence exists that a violation of AS 09.58.010 has occurred. After the investigation and determination are complete, the attorney general shall provide the person who brought the action and the Department of Health and Social Services with a copy of the determination unless the action has been referred to the division of the Department of Law that has responsibility for criminal cases.

 

(e) Before the expiration of the 60-day period or an extension obtained under (c) of this section, the attorney general shall

(1) intervene in the action and proceed with the action on behalf of the state;

(2) notify the court that the attorney general declines to take over the action, in which case the person bringing the action has the right to conduct the action; or

(3) if the attorney general determines that substantial evidence does not exist that a violation of AS 09.58.010 has occurred, or that the action is barred under AS 09.58.050, the attorney general shall move the court to dismiss the action.

(f) The named defendant in a complaint filed under this section is not required to respond to a complaint filed under this section until after the complaint is unsealed by the court and a copy of the summons and complaint are served on the defendant under the applicable Alaska Rules of Civil Procedure.

 

(g) When a person brings an action under this section, only the attorney general may intervene or bring a related action based on similar facts to the underlying action.

 

09.58.025. Subpoenas

Effective: [See Text Amendments] to June 30, 2019

<Text of section effective until July 1, 2019. See, also text of section effective July 1, 2019.>

 

In conducting an investigation under AS 09.58.015 or 09.58.020, the attorney general may issue subpoenas to compel the production of books, papers, correspondence, memoranda, and other records in connection with an investigation under or the administration of AS 09.58.010–09.58.060. If a medical assistance provider or a medical assistance recipient fails or refuses, without just cause, to obey a subpoena issued under this section, the superior court may, upon application by the attorney general, issue an order requiring the medical assistance provider or medical assistance recipient to appear before the attorney general to produce evidence.

 

Amended by SLA 2017, ch. 3, § 4, eff. July 1, 2019.

 

09.58.030. Rights in false or fraudulent claims actions

 (a) If the attorney general elects to intervene and proceed with an action under AS 09.58.020, the attorney general has exclusive authority for prosecuting the action and is not bound by an act of the person bringing the action. The person who brought the action has the right to continue as a nominal party to the action, but does not have the right to participate in the action except as a witness or as otherwise directed by the attorney general. If the attorney general elects to intervene under AS 09.58.020, the attorney general may file a new complaint or amend the complaint filed by the person who brought the action under AS 09.58.020(b).

 

(b) Notwithstanding the objections of the person who brought the action, the attorney general may

(1) move to dismiss the action at any time under this chapter if the attorney general has notified the person who brought the action of the intent to seek dismissal and the court has provided the person who brought the action with an opportunity to respond to the motion;

(2) settle the action with the defendant at any time, 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 described in this paragraph shall be held in camera.

(c) If the attorney general elects not to proceed under AS 09.58.020 with the action, the person who brought the action has the right to proceed and conduct the action. The attorney general may request at any time during the proceedings to be served with copies of all documents related to the action, including pleadings, motions, and discovery. The attorney general shall pay for the reasonable copying charges for documents provided under this subsection. If the person who brought the action proceeds with the action, the court, without limiting the status and rights of the person who brought the action, shall allow the attorney general to intervene at any time.

 

(d) Whether or not the attorney general proceeds with the action under this chapter, on a showing by the attorney general that certain actions of discovery by the person bringing the action would interfere with pending investigation or prosecution of a criminal or civil proceeding arising out of the same matter, the court may stay the discovery for not more than 90 days. The court may extend the 90-day period on a further showing, in camera, that the state has pursued the criminal or civil investigation or proceedings with reasonable diligence and that proposed discovery in the civil action under AS 09.58.010–09.58.060 may interfere with the ongoing criminal or civil investigation or proceedings.

 

09.58.040. Award to false or fraudulent claim plaintiff

 (a) If the attorney general proceeds with an action brought by a person for a violation of AS 09.58.010, the person who brought the action shall receive at least 15 percent but not more than 25 percent of the proceeds of the action or settlement of the claim, depending on the extent to which the person bringing the action contributed to the prosecution of the action. The court order or settlement agreement shall state the percentage and the amount to be received by the person who brought the action. A payment under this subsection to the person who brought the action may be paid only from proceeds received from a judgment or settlement under this section.

 

(b) If the attorney general does not proceed with an action brought under AS 09.58.020, the person bringing the action to judgment or settlement by court order shall receive an amount that the court decides is reasonable for collecting the civil penalty and damages based on the person’s effort to prosecute the action successfully. The amount shall be at least 25 percent but not more than 30 percent of the proceeds of the action or settlement of the claim. A payment under this subsection to the person who brought the action may be paid only from proceeds received from a judgment or settlement received under this section. In addition, if the person bringing the action prevails, the person is entitled to

(1) full reasonable attorney fees and court costs in a case involving a fraudulent claim, agreement, contract, or understanding; or

(2) reasonable attorney fees and court costs calculated under applicable court rules in a case that does not involve a fraudulent claim, agreement, contract, or understanding.

 

(c) Whether or not the attorney general participates in the action, if the court finds that the action was brought by a person who planned or initiated the violation alleged in the action brought under AS 09.58.020, the court may, to the extent the court considers appropriate, reduce the share of the proceeds of the action that the person would otherwise receive under (a) or (b) of this section, 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 AS 09.58.010, the court shall dismiss the person from the civil action and the person may not receive any share of the proceeds of the action or settlement. A dismissal under this subsection does not prejudice the right of the attorney general to continue the action.

 

(d) In this section, “proceeds of the action or settlement”

(1) includes damages, civil penalties, payment for cost of compliance, and other economic benefits realized by the state as a result of a civil action brought under AS 09.58.010–09.58.060;

(2) does not include attorney fees and costs awarded to the state.

 

09.58.050. Certain actions barred

A person may not bring an action under AS 09.58.020 if the action is

 

(1) based on evidence or information known to the state when the action was brought;

 

(2) based on allegations or transactions that are the subject of a civil or criminal action or an administrative proceeding in which the state is already a party;

 

(3) based on the public disclosure of allegations or actions in a criminal or civil action or an administrative hearing, or from the news media, unless the action is brought by the attorney general or the person bringing the action is an original source of the information that was publicly disclosed; in this paragraph, a person is an original source of the information that was publicly disclosed if the person has independent knowledge, including knowledge based on personal investigation of the defendant’s conduct, of the information on which the allegations are based, and has voluntarily provided or verified the information on which the allegations are based or voluntarily provided the information to the attorney general before filing an action under AS 09.58.020 that is based on the information; or

 

(4) against the state or current or former state employees.

 

09.58.060. State not liable for attorney fees, costs, and other expenses

The state, its agencies, current or former officers, and current or former employees are not liable for attorney fees, costs, and other expenses that a person incurs in bringing an action under AS 09.58.020.

 

09.58.070. Employee protection for retaliation

(a) An employee of a medical assistance provider who is discharged, demoted, suspended, threatened, harassed, or 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 chapter, including investigation for, initiation of, testimony for or assistance in an action filed or to be filed under this chapter, is entitled to the same relief authorized under AS 39.90.120.

 

<Text of subsec. (b) effective until July 1, 2019. See, also, text of subsec. (b) effective July 1, 2019.>

 

(b) Notwithstanding (a) of this section, a state employee who is discharged, demoted, suspended, threatened, harassed, or discriminated against in the terms and conditions of employment because of lawful acts done by the employee on behalf of the employee or a person who brings an action under AS 09.58.020 or in furtherance of an action under this chapter, including investigation, initiation of, testimony for or assistance in an action filed or to be filed under this chapter, is entitled to relief under AS 39.90.100–39.90.150 (Alaska Whistleblower Act).

 

<Text of subsec. (b) effective July 1, 2019. See, also, text of subsec. (b) effective until July 1, 2019.>

 

(b) Notwithstanding (a) of this section, a state employee who is discharged, demoted, suspended, threatened, harassed, or discriminated against in the terms and conditions of employment because of lawful acts done by the employee on behalf of the employee or in furtherance of an action under AS 09.58.010–09.58.060, including investigation, initiation of, testimony for or assistance in an action filed or to be filed under AS 09.58.010–09.58.060, is entitled to relief under AS 39.90.100–39.90.150 (Alaska Whistleblower Act).

 

(c) A person may not bring an action under this section unless the action is commenced not later than three years after the date the employee was subject to retaliation under (a) or (b) of this section.

 

Amended by SLA 2016, ch. 25, § 20, eff. July 1, 2019.

 

09.58.080. Regulations

The attorney general may adopt regulations under AS 44.62 as necessary to carry out the purposes of this chapter.

 

  • 09.58.090. Special provisions

(a) This chapter does not apply to any controversy involving damages to the state of less than $5,500 in value.

 

<Text of subsec. (b) effective until July 1, 2019. See also, text of subsec. (b) effective July 1, 2019.>

 

(b) No punitive damages may be awarded in an action brought under AS 09.58.010–09.58.060.

 

<Text of subsec. (b) effective July 1, 2019. See also, text of subsec. (b) effective until July 1, 2019.>

 

(b) No punitive damages may be awarded in an action brought under AS 09.58.010–09.58.025.

 

Amended by SLA 2017, ch. 3, § 5, eff. July 1, 2019.

 

09.58.100. Definitions

In this chapter,

 

(1) “attorney general” includes a designee of the attorney general;

 

(2) “claim” means a request for payment of health care services or equipment, whether made to a contractor, grantee, or other person, when the state provides, directly or indirectly, a portion of the money, property, or services requested or demanded, or when the state will, directly or indirectly, reimburse the contractor, grantee, or other recipient for a portion of the money, property, or services requested or demanded;

 

(3) “controversy” means the aggregate of one or more false claims submitted by the same medical assistance provider or medical assistance recipient under this chapter;

 

(4) “knowingly” means that a person, with or without specific intent to defraud,

 

(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;

(5) “medical assistance program” means the federal-state program administered by the Department of Health and Social Services under AS 47.05 and AS 47.07 and regulations adopted under AS 47.05 and AS 47.07;

 

(6) “medical assistance provider” has the meaning given in AS 47.05.290;

 

(7) “medical assistance recipient” has the meaning given in AS 47.05.290;

 

(8) “obligation” means an established duty, whether or not fixed, arising from

 

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

(B) a fee-based or similar relationship;

(C) a statute or regulation; or

(D) the retention of any overpayment.

 

09.58.110. Short title

This chapter may be cited as the Alaska Medical Assistance False Claim and Reporting Act.

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