§ 145-B — False statements; actions for treble damages

§ 145-b. False statements; actions for treble damages. 1. (a) It shall\nbe unlawful for any person, firm or corporation knowingly by means of a\nfalse statement or representation, or by deliberate concealment of any\nmaterial fact, or other fraudulent scheme or device, on behalf of\nhimself or others, to attempt to obtain or to obtain payment from public\nfunds for services or supplies furnished or purportedly furnished\npursuant to this chapter.\n (b) For purposes of this section, "statement or representation"\nincludes, but is not limited to: a claim for payment made to the state,\na political subdivision of the state, or an entity performing services\nunder contract to the state or a political subdivision of the state; an\nacknowledgment, certification, claim, ratification or report of data\nwhich serves as the basis for a claim or a rate of payment, financial\ninformation whether in a cost report or otherwise, health care services\navailable or rendered, and the qualifications of a person that is or has\nrendered health care services.\n (c) For purposes of this section, a person, firm or corporation has\nattempted to obtain or has obtained public funds when any portion of the\nfunds from which payment was attempted or obtained are public funds, or\nany public funds are used to reimburse or make prospective payment to an\nentity from which payment was attempted or obtained.\n 2. For any violation of subdivision one, the local social services\ndistrict or the state shall have a right to recover civil damages equal\nto three times the amount by which any figure is falsely overstated or\nin the case of non-monetary false statements or representations, three\ntimes the amount of damages which the state, political subdivision of\nthe state, or entity performing services under contract to the state or\npolitical subdivision of the state sustain as a result of the violation\nor five thousand dollars, whichever is greater. Notwithstanding part C\nof chapter fifty-eight of the laws of two thousand five: (a) For civil\ndamages collected by a local social services district, relating to the\nmedical assistance program, pursuant to a judgment under this\nsubdivision, such amounts shall be apportioned between the local social\nservices district and the state. If the violation occurred: (i) prior to\nJanuary first, two thousand six, the amount apportioned to the local\nsocial services district shall be the local share percentage in effect\nimmediately prior to such date as certified by the division of budget,\nor (ii) after January first, two thousand six, the amount apportioned to\nthe local social services district shall be based on a reimbursement\nschedule, created by the office of Medicaid inspector general, in effect\nat the time the violation occurred; provided that, if there is no\nschedule in effect at the time the violation occurred, the schedule to\nbe used shall be the first schedule adopted pursuant to this\nsubdivision. Such schedule shall provide for reimbursement to a local\nsocial services district in an amount between ten and fifteen percent of\nthe gross amount collected. Such schedule shall be set on a county by\ncounty basis and shall be periodically reviewed and updated as\nnecessary; provided, however, that any such updated schedule shall not\nbe less than ten percent nor greater than fifteen percent of the gross\namount collected; and (b) For civil damages collected by the state\nrelating to the medical assistance program pursuant to a judgment under\nthis subdivision, the local social services district shall be entitled\nto compensation up to fifteen percent of the gross amount collected for\nsuch participation, including but not limited to identification,\ninvestigation or development of a case, commensurate with its level of\neffort or value added as determined by the Medicaid inspector general.\n 3. If any provider or supplier of services in the program of medical\nassistance is required to refund or repay all or part of any payment\nreceived by said provider or supplier under the provisions of this\nchapter and title XIX of the federal social security act, said refund or\nrepayment shall bear interest from the date the payment was made to said\nprovider or supplier to the date of said refund or repayment. Interest\nshall be at the maximum legal rate in effect on the date the payment was\nmade to said provider or supplier.\n 4. (a) The Medicaid inspector general, in consultation with the\ndepartment of health, may require the payment of a monetary penalty as\nrestitution to the medical assistance program by any person who fails to\ncomply with the standards of the medical assistance program or standards\nof generally accepted medical practice in a substantial number of cases\nor grossly and flagrantly violated such standards and:\n (i) receives, or causes to be received by another person, payment from\nthe medical assistance program when such person knew, or had reason to\nknow, that:\n (A) the payment involved the providing or ordering of care, services\nor supplies that were medically improper, unnecessary or in excess of\nthe documented medical needs of the person to whom they were furnished;\n (B) the care, services or supplies were not provided as claimed;\n (C) the person who ordered, prescribed, or furnished the care,\nservices or supplies which were medically improper, unnecessary or in\nexcess of the documented medical need of the person to whom they were\nfurnished was suspended or excluded from the medical assistance program\nat the time the care, services or supplies were furnished; or\n (D) the services or supplies for which payment was received were not,\nin fact, provided; or\n (ii) such person fails to grant timely access to facilities and\nrecords, upon reasonable notice, to the Medicaid inspector general, the\nMedicaid fraud control unit of the attorney general's office, or the\ndepartment of health for the purpose of audits, investigations, reviews,\nor other statutory functions. For purposes of this subparagraph,\n"reasonable notice" means a written request made by a properly\nidentified agent of the Medicaid inspector general, the Medicaid fraud\ncontrol unit of the attorney general's office, or the department of\nhealth either, during hours that the individual or entity is open for\nbusiness, or mailed to the individual or entity to an address on file\nwith the department of health or last known address. The request shall\ninclude a statement of the authority for the request, the definition of\n"reasonable notice", and the penalties for failure to comply;\n (iii) such person knew or should have known that an overpayment has\nbeen identified and does not report, return and explain the overpayment\nin accordance with subdivision six of section three hundred\nsixty-three-d of this article;\n (iv) such person arranges or contracts, by employment, agreement, or\notherwise, with an individual or entity that the person knows or should\nknow is suspended or excluded from the medical assistance program at the\ntime such arrangement or contract regarding activities related to the\nmedical assistance program is made;\n (v) such person had an obligation to identify, claim, and pay a bonus\nunder subdivision three of section three hundred sixty-seven-w of this\narticle and such person failed to identify, claim and pay such bonus.\n (vi) For purposes of this paragraph, "person" as used in subparagraph\n(i) of this paragraph does not include recipients of the medical\nassistance program; and "person" as used in subparagraphs (ii), (iii)\nand (iv) of this paragraph, is as defined in paragraph (e) of\nsubdivision six of section three hundred sixty-three-d of this article;\nand "person" as used in subparagraph (v) of this paragraph includes\nemployers as defined in section three hundred sixty-seven-w of this\narticle.\n (b) In determining the amount of any monetary penalty to be imposed,\nthe Medicaid inspector general, in consultation with the department of\nhealth, shall take into consideration the following:\n (i) the number and total value of the claims for payment from the\nmedical assistance program which were the underlying basis of the\ndetermination to impose a monetary penalty;\n (ii) the effect, if any, on the quality of medical care provided to\nrecipients of medical assistance as a result of the acts of the person;\n (iii) the degree of culpability of the person in committing the\nproscribed actions and any mitigating circumstances;\n (iv) any prior violations committed by the person relating to the\nmedical assistance program, Medicare or other social services programs\nwhich resulted in either a criminal or administrative sanction, penalty,\nor recoupment; and\n (v) any other facts relating to the nature and seriousness of the\nviolations including any exculpatory facts.\n (c) (i) For subparagraphs (i), (iii), and (iv) of paragraph (a) of\nthis subdivision, in no event shall the monetary penalty imposed exceed\nten thousand dollars for each item or service which was the subject of\nthe determination herein, except that where a penalty under this section\nhas been imposed on a person within the previous five years, such\npenalty shall not exceed thirty thousand dollars for each item or\nservice which was the subject of the determination herein.\n (ii) For subparagraph (ii) of paragraph (a) of this subdivision, in no\nevent shall the monetary penalty exceed fifteen thousand dollars for\neach day of the failure described in such subparagraph.\n (iii) For subparagraph (v) of paragraph (a) of this subdivision, a\nmonetary penalty shall be imposed for conduct described in subparagraphs\n(i), (ii) and (iii) of paragraph (a) of subdivision five of section\nthree hundred sixty-seven-w of this article and shall not exceed one\nthousand dollars per failure to identify, claim and pay a bonus for each\nemployee.\n (d) Amounts collected pursuant to this subdivision shall be\napportioned between the local social services district and the state in\naccordance with the regulations of the department of health.\n (e) For the purposes of this subdivision, "gross and flagrant\nviolation" shall mean conduct which has an adverse effect on the fiscal\nintegrity of the medical assistance program and:\n (i) which substantially impairs the delivery of high quality medical\ncare, services, or supplies; or\n (ii) which substantially impairs the oversight and administration of\nthe program.\n (f) A person against whom a monetary penalty is imposed pursuant to\nthis subdivision shall be entitled to notice and an opportunity to be\nheard, including the right to request a hearing pursuant to section\ntwenty-two of this chapter.\n 5. When in the course of conducting an investigation relating to the\ninvestigation relating to the medical assistance program, a local social\nservices district deduces that a provider may have committed criminal\nfraud, it shall refer the case to the office of Medicaid inspector\ngeneral along with appropriate supporting information. The office shall\npromptly review the case and, if deemed appropriate, refer the case\npursuant to subdivision seven of section thirty-two of the public health\nlaw. If the deputy attorney general for Medicaid fraud control accepts a\nreferral from the office of Medicaid inspector general that was\nidentified, investigated or developed by a local social services\ndistrict, and the state collects damages, the participating local social\nservices district shall be entitled to compensation up to fifteen\npercent of the gross amount collected for such participation\ncommensurate with its level of effort or value added as determined by\nthe deputy attorney general for Medicaid fraud control. If the office of\nMedicaid inspector general determines that it is not appropriate for\nreferral in accordance with subdivision seven of section thirty-two of\nthe public health law the office of Medicaid inspector general shall\nfurther investigate the case, with notice to the participating local\nsocial services district, or return the case to the participating social\nservices district, which may resume its investigation of the provider.\n