§ 25.5-4-309 — False medicaid claims civil investigation demands

(1) General. (a) (I) Whenever the attorney general has reason to believe that a person
may be in possession, custody, or control of documentary material or information
relevant to a false medicaid claims law investigation, the attorney general may,
before commencing a civil proceeding under section 25.5-4-306 or other false
medicaid claims law or making an election under section 25.5-4-306 (2)(d), issue in
writing and cause to be served upon the person a civil investigative demand
requiring the person to:

(A) Produce the documentary material for inspection and copying;

(B) Answer in writing written interrogatories with respect to the
documentary material or information;

(C) Give oral testimony concerning the documentary material or information;
or

(D) Furnish any combination of such material, answers, or testimony.

(II) The attorney general may not delegate the authority to issue civil
investigative demands under this subsection (1). Whenever a civil investigative
demand is an express demand for any product of discovery, the attorney general,
the deputy attorney general, or an assistant attorney general shall cause to be
served, in any manner authorized by this section, a copy of the demand upon the
person from whom the discovery was obtained and shall notify the person to whom
the demand is issued of the date on which the copy was served.

(b) (I) Each civil investigative demand issued under this subsection (1) shall
state the nature of the conduct constituting the alleged violation of a false
medicaid claims law that is under investigation and the applicable provision of law
alleged to be violated.

(II) If the demand is for the production of documentary material, the demand
shall:

(A) Describe each class of documentary material to be produced with such
definiteness and certainty as to permit the material to be fairly identified;

(B) Prescribe a return date for each such class that will provide a reasonable
period of time within which the material so demanded may be assembled and made
available for inspection and copying; and

(C) Identify the false medicaid claims law investigator to whom the material
shall be made available.

(III) If the demand is for answers to written interrogatories, the demand shall:

(A) Specify the written interrogatories to be answered;

(B) Prescribe dates on which answers to written interrogatories shall be
submitted; and

(C) Identify the false medicaid claims law investigator to whom the answers
shall be submitted.

(IV) If the demand is for the giving of oral testimony, the demand shall:

(A) Prescribe a date, time, and place at which oral testimony shall be
commenced and notify the deponent if the oral testimony is to be video or audio
recorded;

(B) Identify a false medicaid claims law investigator who shall conduct the
examination and the custodian to whom the transcript of the examination shall be
submitted;

(C) Specify that such attendance and testimony are necessary to the
conduct of the investigation;

(D) Notify the person receiving the demand of the right to be accompanied
by an attorney and any other representative; and

(E) Describe the general purpose for which the demand is being issued and
the general nature of the testimony, including the primary areas of inquiry, that will
be taken pursuant to the demand.

(V) A civil investigative demand issued under this section that is an express
demand for any product of discovery shall not be returned or returnable until
twenty days after a copy of the demand has been served upon the person from
whom the discovery was obtained.

(VI) The date prescribed for the commencement of oral testimony pursuant
to a civil investigative demand issued under this section shall be a date that is not
less than seven days after the date on which the demand is received, unless the
attorney general or an assistant attorney general designated by the attorney
general determines that exceptional circumstances are present that warrant the
commencement of the testimony within a lesser period of time.

(VII) The attorney general shall not authorize the issuance under this section
of more than one civil investigative demand for oral testimony by the same person
unless the person requests otherwise or unless the attorney general, after
investigation, notifies that person in writing that an additional demand for oral
testimony is necessary. Notwithstanding section 24-31-103, C.R.S., the attorney
general shall not authorize the performance, by any other officer, employee, or
agency, of any function vested in the attorney general under this subparagraph
(VII).

(2) Protected material or information. (a) A civil investigative demand
issued under subsection (1) of this section shall not require the production of
documentary material, the submission of answers to written interrogatories, or the
giving of oral testimony if the material, answers, or testimony would be protected
from disclosure under:

(I) The standards applicable to subpoenas or subpoenas duces tecum issued
by a court of this state to aid in a grand jury investigation; or

(II) The standards applicable to discovery requests under the Colorado rules
of civil procedure, to the extent that the application of the standards to any such
demand is appropriate and consistent with the provisions and purposes of this
section.

(b) A demand that is an express demand for a product of discovery
supersedes any inconsistent order, rule, or provision of law, other than this section,
preventing or restraining disclosure of the product of discovery to a person.
Disclosure of a product of discovery pursuant to an express demand does not
constitute a waiver of any right or privilege that the person making the disclosure
may be entitled to invoke to resist discovery of trial preparation materials.

(3) Service and jurisdiction. (a) A civil investigative demand issued under
subsection (1) of this section or a petition brought pursuant to subsection (10) of this
section may be served by a false medicaid claims law investigator, a sheriff, or a
deputy sheriff at any place within the state.

(b) A civil investigative demand issued under subsection (1) of this section or
a petition filed under subsection (10) of this section may be served upon a person
who is not found within the state in the manner prescribed by the Colorado rules of
civil procedure for service in another state or a foreign country. To the extent that
the courts of this state can assert jurisdiction over any such person consistent with
due process, the district court for the city and county of Denver shall have the same
jurisdiction to take an action respecting compliance with this section by any such
person that the court would have if the person were personally within the
jurisdiction of the court.

(4) Service on legal entities and natural persons. (a) Service of a civil
investigative demand issued under subsection (1) of this section or of a petition filed
under subsection (10) of this section may be made upon a partnership, corporation,
association, or other legal entity by:

(I) Delivering an executed copy of the demand or petition to a partner,
executive officer, managing agent, or general agent of the partnership, corporation,
association, or entity, or to an agent authorized by appointment or by law to receive
service of process on behalf of the partnership, corporation, association, or entity;

(II) Delivering an executed copy of the demand or petition to the principal
office or place of business of the partnership, corporation, association, or entity; or

(III) Depositing an executed copy of the demand or petition in the United
States mail by registered or certified mail, with a return receipt requested,
addressed to the partnership, corporation, association, or entity at its principal
office or place of business.

(b) Service of a civil investigative demand issued under subsection (1) of this
section or of a petition filed under subsection (10) of this section may be made upon
a natural person by:

(I) Delivering an executed copy of the demand or petition to the person; or

(II) Depositing an executed copy of the demand or petition in the United
States mail by registered or certified mail, with a return receipt requested,
addressed to the person at the person's residence, principal office, or place of
business.

(5) Proof of service. A verified return by the individual serving a civil
investigative demand issued under subsection (1) of this section or a petition filed
under subsection (10) of this section setting forth the manner of the service shall be
proof of the service. In the case of service by registered or certified mail, the return
shall be accompanied by the return post office receipt of delivery of the demand.

(6) Documentary material. (a) (I) The production of documentary material in
response to a civil investigative demand issued under subsection (1) of this section
shall be made under a sworn certificate, in the form as the demand designates, by:

(A) In the case of a natural person, the person to whom the demand is
directed; or

(B) In the case of a person other than a natural person, a person having
knowledge of the facts and circumstances relating to the production and
authorized to act on behalf of the person.

(II) The certificate shall state that all of the documentary material required
by the demand and in the possession, custody, or control of the person to whom the
demand is directed has been produced and made available to the false medicaid
claims law investigator identified in the demand.

(b) A person upon whom a civil investigative demand for the production of
documentary material has been served under this section shall make the material
available for inspection and copying to the false medicaid claims law investigator
identified in the demand at the principal place of business of the person, or at such
other place as the false medicaid claims law investigator and the person thereafter
may agree and prescribe in writing, or as the court may direct under subsection (10)
of this section. The material shall be made so available on the return date specified
in the demand, or on such later date as the false medicaid claims law investigator
may prescribe in writing. The person may, upon written agreement between the
person and the false medicaid claims law investigator, substitute copies for
originals of all or any part of the material.

(7) Interrogatories. (a) Each interrogatory in a civil investigative demand
issued under subsection (1) of this section shall be answered separately and fully in
writing under oath and shall be submitted under a sworn certificate, in the form the
demand designates, by:

(I) In the case of a natural person, the person to whom the demand is
directed; or

(II) In the case of a person other than a natural person, the person or persons
responsible for answering each interrogatory.

(b) If an interrogatory is objected to, the reasons for the objection shall be
stated in the certificate instead of an answer. The certificate shall state that all
information required by the demand and in the possession, custody, control, or
knowledge of the person to whom the demand is directed has been submitted. To
the extent that any information is not furnished, the information shall be identified
and reasons set forth with particularity regarding the reasons why the information
was not furnished.

(8) Oral examinations. (a) The examination of a person pursuant to a civil
investigative demand for oral testimony issued under subsection (1) of this section
shall be taken before an officer authorized to administer oaths and affirmations by
the laws of the United States, the state of Colorado, or the place where the
examination is held. The officer before whom the testimony is to be taken shall put
the witness on oath or affirmation and shall, personally or with the assistance of
someone acting under the direction of the officer and in the officer's presence,
record the testimony of the witness. The testimony shall be taken stenographically
and shall be transcribed. When the testimony is fully transcribed, the officer before
whom the testimony is taken shall promptly transmit a copy of the transcript of the
testimony to the custodian. This subsection (8) shall not preclude the taking of
testimony by any means authorized by, and in a manner consistent with, the
Colorado rules of civil procedure.

(b) The false medicaid claims law investigator conducting the examination
shall exclude from the place where the examination is held all persons except the
person giving the testimony, the attorney for and any other representative of the
person giving the testimony, the attorney for the state, any person who may be
agreed upon by the attorney for the state and the person giving the testimony, the
officer before whom the testimony is to be taken, and the stenographer who is
recording the testimony.

(c) The oral testimony of a person taken pursuant to a civil investigative
demand served under this section shall be taken in the judicial district of the state
within which the person resides, is found, or transacts business, or in another place
as may be agreed upon by the false medicaid claims law investigator conducting
the examination and the person.

(d) When the testimony is fully transcribed, the false medicaid claims law
investigator or the officer before whom the testimony is taken shall afford the
witness, who may be accompanied by counsel, a reasonable opportunity to examine
and read the transcript, unless the witness waives the examination and reading. Any
changes in form or substance that the witness desires to make shall be entered and
identified upon the transcript by the officer or the false medicaid claims law
investigator, with a statement of the reasons given by the witness for making the
changes. The transcript shall then be signed by the witness, unless the witness in
writing waives the signing, is ill, cannot be found, or refuses to sign. If the witness
does not sign the transcript within thirty days after being afforded a reasonable
opportunity to examine it, the officer or the false medicaid claims law investigator
shall sign it and state on the record the fact of the waiver, illness, absence of the
witness, or refusal to sign, together with the reasons, if any, given therefor.

(e) The officer before whom the testimony is taken shall certify on the
transcript that the witness was sworn by the officer and that the transcript is a true
record of the testimony given by the witness, and the officer or false medicaid
claims law investigator shall promptly deliver the transcript, or send the transcript
by registered or certified mail, to the custodian.

(f) Upon payment of reasonable charges therefor, the false medicaid claims
law investigator shall furnish a copy of the transcript to the witness only; except
that the attorney general, the deputy attorney general, or an assistant attorney
general may, for good cause, limit the witness to inspection of the official transcript
of the testimony of the witness.

(g) (I) A person compelled to appear for oral testimony under a civil
investigative demand issued under subsection (1) of this section may be
accompanied, represented, and advised by counsel. Counsel may advise the person,
in confidence, with respect to any question asked of the person. The person or
counsel may object on the record to any question, in whole or in part, and shall
briefly state for the record the reason for the objection. An objection may be made,
received, and entered upon the record when it is claimed that the person is entitled
to refuse to answer the question on the grounds of any constitutional or other legal
right or privilege, including the privilege against self-incrimination. The person may
not otherwise object to or refuse to answer any question and may not directly or
through counsel otherwise interrupt the oral examination. If the person refuses to
answer a question, the false medicaid claims law investigator may file a petition in a
district court under paragraph (a) of subsection (10) of this section for an order
compelling the person to answer the question.

(II) If the person refuses to answer a question on the grounds of the privilege
against self-incrimination, the false medicaid claims law investigator may compel
the testimony of the person in accordance with the provisions of section 13-90-118,
C.R.S.

(III) A person appearing for oral testimony under a civil investigative demand
issued under subsection (1) of this section shall be entitled to the same fees and
allowances that are paid to witnesses in the district courts of this state.

(9) Custodian of documents, answers, and transcripts. (a) The attorney
general shall designate a false medicaid claims law investigator to serve as
custodian of documentary material, answers to interrogatories, and transcripts of
oral testimony received under this section and shall designate such additional false
medicaid claims law investigators as the attorney general determines from time to
time to be necessary to serve as deputies to the custodian.

(b) (I) A false medicaid claims law investigator who receives any
documentary material, answers to interrogatories, or transcripts of oral testimony
under this section shall transmit them to the custodian. The custodian shall take
physical possession of the material, answers, or transcripts and shall be
responsible for the use made of them and for the return of documentary material
under paragraph (d) of this subsection (9).

(II) The custodian may cause the preparation of copies of the documentary
material, answers to interrogatories, or transcripts of oral testimony as may be
required for official use by a false medicaid claims law investigator or other officer
or employee of the department of law who is authorized for such use under
regulations that the attorney general shall issue. The material, answers, and
transcripts may be used by any such authorized false medicaid claims law
investigator or other officer or employee in connection with the taking of oral
testimony under this section.

(III) (A) Except as otherwise provided in this subsection (9), documentary
material, answers to interrogatories, or transcripts of oral testimony, or copies
thereof, while in the possession of the custodian, shall not be available for
examination by an individual other than a false medicaid claims law investigator or
other officer or employee of the department of law authorized under subparagraph
(II) of this paragraph (b).

(B) Sub-subparagraph (A) of this subparagraph (III) shall not apply if consent
is given by the person who produced the material, answers, or transcripts or, in the
case of any product of discovery produced pursuant to an express demand for the
material, if consent is given by the person from whom the discovery was obtained.

(C) Nothing in this subparagraph (III) is intended to prevent disclosure to the
general assembly, including any committee of the general assembly, or to any other
agency of the state for use by the agency in furtherance of its statutory
responsibilities. Disclosure of information to any such other agency shall be
allowed only upon application, made by the attorney general to a district court,
showing substantial need for the use of the information by the agency in
furtherance of its statutory responsibilities.

(IV) While in the possession of the custodian and under such reasonable
terms and conditions as the attorney general shall prescribe:

(A) Documentary material and answers to interrogatories shall be available
for examination by the person who produced the material or answers, or by a
representative of that person authorized by that person to examine the material
and answers; and

(B) Transcripts of oral testimony shall be available for examination by the
person who produced the testimony or by a representative of that person
authorized by that person to examine the transcripts.

(c) Whenever an attorney of the department of law has been designated to
appear before a court, grand jury, or state agency in a case or proceeding, the
custodian of any documentary material, answers to interrogatories, or transcripts of
oral testimony received under this section may deliver to the attorney such
material, answers, or transcripts for official use in connection with the case or
proceeding as the attorney determines to be required. Upon the completion of the
case or proceeding, the attorney shall return to the custodian the material,
answers, or transcripts so delivered that are not in the control of the court, grand
jury, or agency through introduction into the record of the case or proceeding.

(d) The custodian shall, upon written request of a person who produced any
documentary material in the course of any false medicaid claims law investigation
pursuant to a civil investigative demand under this section, return to the person any
such material, other than copies furnished to the false medicaid claims law
investigator under paragraph (b) of subsection (6) of this section or made for the
department of law under subparagraph (II) of paragraph (b) of this subsection (9),
that is not in the control of a court, grand jury, or agency through introduction into
the record of the case or proceeding, if:

(I) A case or proceeding before a court or grand jury arising out of the
investigation or any proceeding before a state agency involving the material has
been completed; or

(II) A case or proceeding in which the material may be used has not been
commenced within a reasonable time after completion of the examination and
analysis of all documentary material and other information assembled in the course
of the investigation.

(e) (I) In the event of the death, disability, or separation from service in the
department of law of the custodian of any documentary material, answers to
interrogatories, or transcripts of oral testimony produced pursuant to a civil
investigative demand under this section, or in the event of the official relief of the
custodian from responsibility for the custody and control of the material, answers,
or transcripts, the attorney general shall promptly:

(A) Designate another false medicaid claims law investigator to serve as
custodian of the material, answers, or transcripts; and

(B) Transmit in writing to the person who produced the material, answers, or
testimony notice of the identity and address of the successor so designated.

(II) A person who is designated to be a successor under this paragraph (e)
shall have, with regard to the material, answers, or transcripts, the same duties and
responsibilities as were imposed by this section upon that person's predecessor in
office; except that the successor shall not be held responsible for any default or
dereliction that occurred before that designation.

(10) Judicial proceedings. (a) Whenever a person fails to comply with a civil
investigative demand issued under subsection (1) of this section, or whenever
satisfactory copying or reproduction of the material requested in a demand cannot
be done and the person refuses to surrender the material, the attorney general may
file, in a district court for the judicial district in which the person resides, is found, or
transacts business, and serve upon the person a petition for an order of the court
for the enforcement of the civil investigative demand.

(b) (I) A person who has received a civil investigative demand issued under
subsection (1) of this section may file a petition for an order of the court to modify or
set aside the demand. The person shall file the petition in a district court for the
judicial district within which the person resides, is found, or transacts business and
shall serve a copy of the petition upon the false medicaid claims law investigator
identified in the demand. In the case of a petition addressed to an express demand
for a product of discovery, the person may file a petition to modify or set aside the
demand only in the district court for the judicial district in which the proceeding in
which the discovery was obtained is or was last pending. The person shall file a
petition under this subparagraph (I):

(A) Within twenty days after the date of service of the civil investigative
demand or at any time before the return date specified in the demand, whichever
date is earlier; or

(B) Within such longer period as may be prescribed in writing by a false
medicaid claims law investigator identified in the demand.

(II) The petition shall specify each ground upon which the petitioner relies in
seeking relief under subparagraph (I) of this paragraph (b) and may be based upon
any failure of the demand to comply with the provisions of this section or upon any
constitutional or other legal right or privilege of the person. During the pendency of
the petition in the court, the court may stay, as it deems proper, the running of the
time allowed for compliance with the demand, in whole or in part; except that the
person filing the petition shall comply with any portions of the demand not sought
to be modified or set aside.

(c) (I) In the case of a civil investigative demand issued under subsection (1)
of this section that is an express demand for a product of discovery, the person
from whom the discovery was obtained may file a petition for an order of the court
to modify or set aside those portions of the demand requiring production of any
product of discovery. The person shall file the petition in the district court for the
judicial district in which the proceeding in which the discovery was obtained is or
was last pending and shall serve a copy of the petition upon the false medicaid
claims law investigator identified in the demand and upon the recipient of the
demand. The person shall file a petition under this subparagraph (I):

(A) Within twenty days after the date of service of the civil investigative
demand or at any time before the return date specified in the demand, whichever
date is earlier; or

(B) Within such longer period as may be prescribed in writing by the false
medicaid claims law investigator identified in the demand.

(II) The petition shall specify each ground upon which the petitioner relies in
seeking relief under subparagraph (I) of this paragraph (c), and may be based upon
any failure of the portions of the demand from which relief is sought to comply with
the provisions of this section or upon any constitutional or other legal right or
privilege of the petitioner. During the pendency of the petition, the court may stay,
as it deems proper, compliance with the demand and the running of the time
allowed for compliance with the demand.

(d) At any time during which a custodian is in custody or control of any
documentary material or answers to interrogatories produced, or transcripts of oral
testimony given, by a person in compliance with a civil investigative demand issued
under subsection (1) of this section, the person, and in the case of an express
demand for any product of discovery, the person from whom the discovery was
obtained, may file a petition for an order of the court to require the performance by
the custodian of any duty imposed upon the custodian by this section. The person
shall file the petition in the district court for the judicial district within which the
office of the custodian is situated and shall serve a copy of the petition upon the
custodian.

(e) Whenever a petition is filed in a district court under this subsection (10),
the court shall have jurisdiction to hear and determine the matter so presented and
to enter such order or orders as may be required to carry out the provisions of this
section. A final order so entered shall be subject to appeal under section 13-4-102,
C.R.S. Any disobedience of a final order entered by a court under this section shall
be punished as a contempt of the court.

(f) The Colorado rules of civil procedure shall apply to a petition under this
subsection (10) to the extent that the rules are consistent with the provisions of this
section.

(11) Disclosure exemption. Any documentary material, answers to written
interrogatories, or oral testimony provided under a civil investigative demand issued
under subsection (1) of this section shall be exempt from disclosure under section
24-72-203, C.R.S.

(12) Definitions. As used in this section, unless the context otherwise
requires:

(a) Custodian means the custodian, or any deputy custodian, designated by
the attorney general under paragraph (a) of subsection (9) of this section.

(b) Documentary material means the original or a copy of a book, record,
report, memorandum, paper, communication, tabulation, chart, or other document,
or data compilations stored in or accessible through computer or other information
retrieval systems, together with instructions and all other materials necessary to
use or interpret the data compilations, and any product of discovery.

(c) False medicaid claims law means:

(I) This section and sections 25.5-4-303.5 to 25.5-4-308; and

(II) Any law enacted before, on, or after May 26, 2010, that prohibits or makes
available to the state in a court of the state a civil remedy with respect to a false
medicaid claim against, bribery of, or corruption of an officer or employee of the
state.

(d) False medicaid claims law investigation means an inquiry conducted by
a false medicaid claims law investigator for the purpose of ascertaining whether a
person is or has been engaged in a violation of a false medicaid claims law.

(e) False medicaid claims law investigator means an attorney or
investigator employed by the department of law who is charged with the duty of
enforcing or carrying into effect a false medicaid claims law or an officer or
employee of the state acting under the direction and supervision of the attorney or
investigator in connection with a false medicaid claims law investigation.

(f) Person means a natural person, partnership, corporation, association, or
other legal entity.

(g) Product of discovery means:

(I) The original or duplicate of a deposition, interrogatory, document, thing,
result of the inspection of land or other property, examination, or admission, any
one of which is obtained by a method of discovery in a judicial or administrative
proceeding of an adversarial nature;

(II) A digest, analysis, selection, compilation, or derivation of an item listed in
subparagraph (I) of this paragraph (g); and

(III) An index or other manner of access to an item listed in subparagraph (I)
of this paragraph (g).

Legislative History

Source: L. 2010: Entire section added, (SB 10-167), ch. 296, p. 1387, � 14, effective May 26.