Bill Text: GA HB822 | 2011-2012 | Regular Session | Enrolled
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Georgia Taxpayer Protection False Claims Act; enact
Spectrum: Moderate Partisan Bill (Republican 5-1)
Status: (Passed) 2012-07-01 - Effective Date [HB822 Detail]
Download: Georgia-2011-HB822-Enrolled.html
Bill Title: Georgia Taxpayer Protection False Claims Act; enact
Spectrum: Moderate Partisan Bill (Republican 5-1)
Status: (Passed) 2012-07-01 - Effective Date [HB822 Detail]
Download: Georgia-2011-HB822-Enrolled.html
12 LC 29
5218ERS
The
House Committee on Judiciary offers the following substitute to HB
822:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 3 of Title 23 and Chapter 4 of Title 49 of the Official Code of
Georgia Annotated, relating to equitable remedies and proceedings generally and
public assistance, respectively, so as to comprehensively address the submission
of false claims to the state, the Georgia Medicaid program, and local
governments; to enact the "Georgia Taxpayer Protection False Claims Act"; to
provide for a short title; to provide for definitions; to provide for liability
to this state for certain false claims; to provide for civil actions for false
claims submitted to this state or to local governments; to provide for
exclusions for certain civil actions; to provide for procedure; to provide for
burden of proof; to provide for statute of limitations; to provide for venue; to
provide for civil investigative demands; to provide for remedies under other
laws; to provide for severability; to provide for construction; to substantially
revise the "State False Medicaid Claims Act"; to change and provide for
definitions; to change the elements of false or fraudulent Medicaid claims; to
redirect proceeds from the Indigent Care Trust Fund to the Georgia Department of
Community Health; to provide for the Attorney General to intervene in a civil
action; to repeal provisions relating to employee discrimination or harassment
by an employer while an employee pursues a civil action under the "State False
Medicaid Claims Act" and provide for remedies for such conduct and other conduct
involving employees, contractors, and agents; to change and create provisions
relating to the statute of limitations; to provide for related matters; to
repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
PART
I
SECTION 1-1.
SECTION 1-1.
Part
I of this Act shall be known and may be cited as the "Georgia Taxpayer
Protection False Claims Act."
SECTION
1-2.
Chapter
3 of Title 23 of the Official Code of Georgia Annotated, relating to equitable
remedies and proceedings generally, is amended by adding a new article to read
as follows:
"ARTICLE
6
23-3-120.
As
used in this article, the term:
(1)
'Claim' means any request or demand, whether under a contract or otherwise, for
money or property, and whether or not this state or a local government has title
to such money or property that is:
(A)
Presented to an officer, employee, or agent of the state or local
government;
(B)
Made to a contractor, grantee, or other recipient, if the money or property is
to be spent or used on the state's or local government's behalf or to advance a
state or local government program or interest, and if the state or local
government:
(i)
Provides or has provided any portion of the money or property requested or
demanded; or
(ii)
Will reimburse such contractor, grantee, or other recipient for any portion of
the money or property which is requested or demanded.
Such
term shall not include requests or demands for money or property that the state
or local government has paid to an individual as compensation for state or local
government employment or as an income subsidy with no restrictions on that
individual's use of the money or property.
(2)
'Knowing' and 'knowingly' mean that a person, with respect to
information:
(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.
No
proof of specific intent to defraud is required.
(3)
'Local government' means any Georgia county, municipal corporation, consolidated
government, authority, board of education or other local public board, body, or
commission, town, school district, board of cooperative educational services,
local public benefit corporation, hospital authority, taxing authority, or other
political subdivision of the state or of such local government, including
MARTA.
(4)
'Material' means having a natural tendency to influence, or be capable of
influencing, the payment or receipt of money or property.
(5)
'Obligation' means an established duty, whether fixed or not, arising from an
express or implied contractual, grantor-grantee, or licensor-licensee
relationship, from a fee based or similar relationship, from law or regulation,
or from the retention of any overpayment.
(6)
'State' means the State of Georgia and any state department, board, bureau,
division, commission, committee, public benefit corporation, public authority,
council, office, or other governmental entity performing a governmental or
proprietary function for this state.
23-3-121.
(a)
Any person, firm, corporation, or other legal entity that:
(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)
Conspires to commit a violation of paragraph (1), (2), (4), (5), (6), or (7) of
this subsection;
(4)
Has possession, custody, or control of property or money used, or to be used, by
the state or local government and knowingly delivers, or causes to be delivered,
less than all of that money or property;
(5)
Being authorized to make or deliver a document certifying receipt of property
used, or to be used, by the state or local government and, intending to defraud
the state or local government, makes or delivers the receipt without completely
knowing that the information on the receipt is true;
(6)
Knowingly buys, or receives as a pledge of an obligation or debt, public
property from an officer or employee of the state or local government who
lawfully may not sell or pledge the property; or
(7)
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
local government, or knowingly conceals, knowingly and improperly avoids, or
decreases an obligation to pay or transmit money or property to the state or a
local government
shall
be liable to the State of Georgia for a civil penalty of not less than $5,500.00
and not more than $11,000.00 for each false or fraudulent claim, plus three
times the amount of damages which the state or local government sustains because
of the act of such person.
(b)
The provisions of subsection (a) of this Code section notwithstanding, if the
court finds that:
(1)
The person committing the violation of this subsection furnished officials of
the state or local government responsible for investigating false claims
violations with all information known to such person about the violation within
30 days after the date on which the defendant first obtained the
information;
(2)
Such person fully cooperated with any government investigation of such
violation; and
(3)
At the time such person furnished the state or local government with the
information about the violation, no criminal prosecution, civil action, or
administrative action had commenced under this article with respect to such
violation, and the person did not have actual knowledge of the existence of an
investigation into such violation,
the
court may assess not more than two times the amount of the actual damages which
the state or local government sustained because of the act of such
person.
(c)
A person violating any provision of this Code section shall also be liable to
the state or local government for all costs, reasonable expenses, and reasonable
attorney's fees incurred by the state or local government in prosecuting a civil
action brought to recover the damages and penalties provided under this
article.
(d)
Any information furnished pursuant to paragraph (2) of subsection (b) of this
Code section shall be exempt from disclosure under Article 4 of Chapter 18 of
Title 50.
(e)
This Code section shall not apply to claims, records, or statements made
concerning taxes under the revenue laws of this state.
23-3-122.
(a)
The Attorney General shall be authorized to investigate suspected, alleged, and
reported violations of this article. If the Attorney General finds that a
person has violated or is violating this article, then the Attorney General may
bring a civil action against such person under this article. The Attorney
General may delegate authority to a district attorney or other appropriate
official of a local government to investigate violations that may have resulted
in damages to such local government under Code Section 23-3-121 and may delegate
to the local government the authority to bring a civil action on its own behalf,
or on behalf of any subdivision of such local government, to recover damages
sustained by such local government as a result of such violations, as well as
all multiple damages, costs, expenses, attorney's fees, and civil penalties
available under Code Section 23-3-121. The Attorney General may delegate to a
district attorney or local government the authority to pursue an action brought
by a private person under subsection (b) of this Code section. Notwithstanding
any such delegation of authority, the Attorney General shall retain the
authority to continue or discontinue the prosecution of any such action and to
withdraw any such authority previously delegated to a district attorney or local
government.
(b)(1)
Subject to the exclusions set forth in this Code section, a civil action under
this article may also be brought by a private person. A civil action shall be
brought in the name of the State of Georgia or local government, as applicable.
The civil action may be dismissed only if the Attorney General gives written
consent to the dismissal stating the reasons for consenting to such dismissal
and the court enters an order approving the dismissal.
(2)
A copy of the complaint and written disclosure of substantially all material
evidence and information the person possesses shall be served on the Attorney
General by certified mail or statutory overnight delivery. The complaint shall
be filed in camera and under seal, shall remain under seal for at least 60 days,
and shall not be served on the defendant until the court so orders. The state
or, if delegated the authority by the Attorney General, local government may
elect to intervene and proceed with the action within 60 days after the Attorney
General receives both the complaint and the material evidence and
information.
(3)
The state or, if delegated the authority by the Attorney General, the local
government may, for good cause shown, move the court for extensions of the time
during which the complaint remains under seal under paragraph (2) of this
subsection. Any such motions may be supported by affidavits or other
submissions in camera. The defendant shall not be required to respond to any
complaint filed under this Code section until 30 days after the complaint is
unsealed and served upon the defendant.
(4)
Before the expiration of the 60 day period or any extensions obtained under
paragraph (3) of this subsection, the state or local government
shall:
(A)
Proceed with the civil action, in which case the civil action shall be conducted
by the state or local government; or
(B)
Notify the court that it declines to take over the civil action, in which case
the person bringing the civil action shall have the right to proceed with the
civil action.
(5)
When a person brings a civil action under this subsection, no person other than
the state or, if delegated the authority by the Attorney General, the local
government may intervene or bring a related civil action based on the facts
underlying the pending civil action.
(6)
Any evidence and information provided to the Attorney General or his or her
designee, including any district attorney or local government, by a private
person in connection with an action under this Code section shall not constitute
public records and shall be exempt from disclosure under Article 4 of Chapter 18
of Title 50. Any such evidence also shall be protected by the common interest
privilege and work product doctrine. To effectuate the law enforcement purposes
of this article in combating fraud and false claims directed at the public's
funds, it is the public policy of this state that private persons be authorized
to take actions to provide to the Attorney General or local government such
information and evidence.
(c)(1)
If the state or local government elects to intervene and proceeds with the civil
action, it shall have the primary responsibility for prosecuting the civil
action and shall not be bound by an act of the person bringing such civil
action. Such person shall have the right to continue as a party to the civil
action, subject to the limitations set forth in this subsection.
(2)
If the Attorney General has consented to a dismissal or elected not to proceed
with a civil action, a local government may dismiss the civil action,
notwithstanding the objections of the person initiating the civil action, if the
person has been notified by the local government of the filing of the motion and
the court has provided the person with an opportunity for a hearing on the
motion.
(3)
The state or local government may settle the civil action with the defendant,
notwithstanding the objections of the person initiating the civil action, 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, such hearing may be held in camera.
(4)
Upon a showing by the state or local government that unrestricted participation
during the course of the litigation by the person initiating the civil action
would interfere with or unduly delay the state or local government's litigation
of the case, or would be repetitious, irrelevant, or for purposes of harassment,
the court may, in its discretion, impose limitations on the person's
participation, such as:
(A)
Limiting the number of witnesses the person may call;
(B)
Limiting the length of the testimony of such witnesses;
(C)
Limiting the person's cross-examination of witnesses; or
(D)
Otherwise limiting the participation of the person in the
litigation.
(d)
Upon a showing by the defendant that unrestricted participation during the
course of the litigation by the person initiating the civil action would be for
purposes of harassment or would cause the defendant undue burden or unnecessary
expense, the court may limit the participation of the person in the
litigation.
(e)
If the state or local government elects not to proceed with the civil action,
the person who initiated the civil action shall have the right to conduct the
civil action. If the state or local government so requests, it shall be served
with copies of all pleadings filed in the civil action and shall be supplied,
without cost, with copies of all deposition transcripts. When a person proceeds
with the civil action, the court may nevertheless permit the state or local
government to intervene at a later date upon a showing of good
cause.
(f)
Whether or not the state or local government proceeds with the civil action,
upon a showing by the state or local government that certain actions of
discovery by the person initiating the civil action would interfere with the
state or local government's investigation or prosecution of a criminal or civil
matter arising out of the same facts, the court may stay such discovery for a
period of not more than 60 days. Such a showing shall be conducted in camera.
The court may extend the 60 day period upon a further showing in camera that the
state or local government has pursued the criminal or civil investigation or
proceedings with reasonable diligence, and any proposed discovery in the civil
action will interfere with the ongoing criminal or civil investigation or
proceedings.
(g)
Notwithstanding subsection (b) of this Code section, the state or local
government may elect to pursue its claim through any alternate remedy available
to the state or local government, including any administrative proceeding to
determine a civil money penalty. If any such alternate remedy is pursued in
another proceeding, the person initiating the civil action shall have the same
rights in such proceeding as such person would have had if the civil action had
continued under this Code section. Any finding of fact or conclusion of law
made in such other proceeding that becomes final shall be conclusive on all
parties to a civil action under this Code section. For purposes of this
subsection, a finding or conclusion shall be deemed final if it has been finally
determined on appeal to the appropriate court, if all time for filing such an
appeal with respect to the finding or conclusion has expired, or if the finding
or conclusion is not subject to judicial review.
(h)(1)
If the state or local government proceeds with a civil action brought by a
private person under subsection (b) of this Code section, such person shall,
subject to the second sentence of this paragraph, receive at least 15 percent
but not more than 25 percent of the proceeds of the civil action or settlement
of the claim, depending upon the extent to which the person substantially
contributed to the prosecution of the civil action. Where the civil action is
one which the court finds to be based primarily on disclosures of specific
information, other than information provided by the person bringing the civil
action, relating to allegations or transactions in a criminal, civil, or
administrative hearing; in a legislative, administrative, or State Accounting
Office report, hearing, audit, or investigation; or from the news media, the
court may award such sums as it considers appropriate, but in no case more than
10 percent of the proceeds, taking into account the significance of the
information and the role of the person bringing such civil action in advancing
the case to litigation. Any payment to a person under the first or second
sentence of this paragraph shall be made from the proceeds. Any such person
shall also receive an amount for reasonable expenses which the court finds to
have been necessarily incurred, plus reasonable attorney's fees and costs. All
such expenses, fees, and costs shall be awarded against the
defendant.
(2)
If the state or local government does not proceed with a civil action under this
Code section, the person bringing the civil action or settling the claim shall
receive an amount which the court decides is reasonable for collecting the civil
penalty and damages. Such amount shall be not less than 25 percent and not more
than 30 percent of the proceeds of the civil action or settlement and shall be
paid out of such proceeds. Such person shall also receive an amount for
reasonable expenses which the court finds to have been necessarily incurred,
plus reasonable attorney's fees and costs. All such expenses, fees, and costs
shall be awarded against the defendant.
(3)
Whether or not the state or local government proceeds with the civil action, if
the court finds that the civil action was brought by a person who planned and
initiated the violation of this article upon which the civil action was brought,
then the court may, to the extent the court considers appropriate, reduce the
share of the proceeds of the civil action which the person would otherwise
receive under paragraph (1) or (2) of this subsection, 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 civil
action is convicted of criminal conduct arising from his or her role in the
violation of this article, such person shall be dismissed from the civil action
and shall not receive any share of the proceeds of the civil action. Such
dismissal shall not prejudice the right of the State of Georgia to continue the
civil action, represented by the Attorney General or local government attorney
to whom the Attorney General has delegated authority.
(4)
If the state or local government does not proceed with the civil action and the
person bringing the civil action conducts the civil action, the court may award
to the defendant its reasonable attorney's fees and expenses against the person
bringing the civil action if the defendant prevails in the civil action and the
court finds that the claim of the person bringing the civil action was clearly
frivolous, clearly vexatious, or brought primarily for purposes of
harassment.
(i)
For purposes of this subsection, the term 'public employee,' 'public official,'
and 'public employment' shall include federal, state, and local employees and
officials. No civil action shall be brought under this article by a person who
is or was a public employee or public official if the allegations of such action
are substantially based upon:
(1)
Allegations of wrongdoing or misconduct which such person had a duty or
obligation to report or investigate within the scope of his or her public
employment or office; or
(2)
Information or records to which such person had access as a result of his or her
public employment or office.
(j)(1)
No court shall have jurisdiction over a civil action brought under subsection
(b) of this Code section against a member of the General Assembly or a member of
the judiciary if the civil action is based on evidence or information known to
the state when the civil action was brought.
(2)
In no event may a person bring a civil action under subsection (b) of this Code
section which is based upon allegations or transactions which are the subject of
a civil or administrative proceeding to which the State of Georgia is already
party.
(3)
The court shall dismiss a civil action or claim under this Code section, unless
opposed by the state or local government, if substantially the same allegations
or transactions as alleged in the action or claim were publicly
disclosed:
(A)
In a state criminal, civil, or administrative hearing in which the state or
local government or its agent is a party;
(B)
In a state or local government legislative or other state or local government
report, hearing, audit, or investigation that is made on the public record or
disseminated broadly to the general public; provided that such information shall
not be deemed publicly disclosed in a report or investigation because it was
disclosed or provided pursuant to Article 4 of Chapter 18 of Title 50, the
federal Freedom of Information Act, or under any other federal, state, or local
law, rule, or program enabling the public to request, receive, or view documents
or information in the possession of public officials or public agencies;
or
(C)
From the news media, provided that such allegations or transactions are not
publicly disclosed in the news media merely because information of allegations
or transactions have been posted on the Internet or on a computer network,
unless the action is brought by the Attorney General or local government, or the
person bringing the action is an original source of the information. For
purposes of this subparagraph, the term 'original source' means a person
who:
(i)
Prior to a public disclosure under this paragraph, has voluntarily disclosed to
the state or a local government the information on which allegations or
transactions in a claim are based; or
(ii)
Has knowledge that is independent of and materially adds to the publicly
disclosed allegations or transactions and who has voluntarily provided the
information to the state or a local government before filing a civil action
under this Code section.
(k)
The state or local government shall not be liable for expenses which a private
person incurs in bringing a civil action under this article.
(l)(1)
Any employee, contractor, or agent shall be entitled to all relief necessary to
make that employee, contractor, or agent whole if that employee, contractor, or
agent is discharged, demoted, suspended, threatened, harassed, or in any other
manner discriminated against in the terms and conditions of employment because
of lawful acts done by the employee, contractor, agent, or associated others in
furtherance of a civil action under this Code section or other efforts to stop
one or more violations of this article.
(2)
Relief under paragraph (1) of this subsection shall include reinstatement with
the same seniority status that the employee, contractor, or agent would have had
but for the discrimination, two times the amount of back pay, interest on the
back pay, and compensation for any special damages sustained as a result of the
discrimination, including litigation costs and reasonable attorney's fees. An
action under this subsection may be brought in the appropriate superior court of
this state for the relief provided in this subsection.
(3)
A civil action under this subsection shall not be brought more than three years
after the date when the discrimination occurred.
23-3-123.
(a)
Except as provided in paragraph (3) of subsection (l) of Code Section 23-3-122,
all civil actions under this article shall be filed pursuant to Code Section
23-3-122 within six years after the date the violation was committed or three
years after the date when facts material to the right of civil action are known
or reasonably should have been known by the state or local government official
charged with the responsibility to act in the circumstances, whichever occurs
last; provided, however, that in no event shall any civil action be filed more
than ten years after the date upon which the violation was
committed.
(b)
A subpoena requiring the attendance of a witness at a trial or hearing conducted
under Code Section 23-3-122 may be served at any place in this
state.
(c)
For purposes of applying subsection (b) of Code Section 9-11-9, in pleading a
civil action brought under this article, the qui tam plaintiff shall not be
required to identify specific claims that result from an alleged course of
misconduct or any specific records or statements used if the facts alleged in
the complaint, if ultimately proven true, would provide a reasonable indication
that one or more violations of Code Section 23-3-121 are likely to have occurred
and if the allegations in the pleading provide adequate notice of the specific
nature of the alleged misconduct to permit the state or a local government to
investigate effectively and defendants to defend fairly the allegations
made.
(d)
If the state or local government elects to intervene and proceed with a civil
action brought under subsection (b) of Code Section 23-3-122, the state or local
government may file its own complaint or amend the complaint of a person who has
brought an action under such subsection to clarify or add detail to the claims
in which the state or local government is intervening and to add any additional
claims with respect to which the state or local government contends it is
entitled to relief. For statute of limitations purposes, any such state or
local government pleading shall relate back to the filing date of the complaint
of the person who originally brought the action, to the extent that the claim of
the state or local government arises out of the conduct, transactions, or
occurrences set forth, or attempted to be set forth, in the prior complaint of
that person.
(e)
In any action brought under Code Section 23-3-122, the plaintiff shall be
required to prove all essential elements of the cause of action, including
damages, by a preponderance of the evidence.
(f)
Notwithstanding any other provision of law, a final judgment rendered in favor
of the state or local government or the United States in any criminal proceeding
charging fraud or false statements, whether upon a verdict after trial or upon a
plea of guilty or nolo contendere, shall estop the defendant from denying the
essential elements of the offense in any civil action which involves the same
transaction as in the criminal proceeding and which is brought under subsection
(a) or (b) of Code Section 23-3-122.
23-3-124.
All
civil actions brought under this article in a court of this state shall be
brought in the county where the defendant or any one defendant, in the case of
multiple defendants or defendants who are not residents of the State of Georgia,
resides, can be found, transacts business, or commits an act in furtherance of
the submittal of a false or fraudulent claim to the state or local government.
Civil actions under this article may be brought in courts of the United States
and other states if there is pendent jurisdiction.
23-3-125.
(a)
As used in this Code section, the term:
(1)
'Custodian' means the custodian, or any deputy custodian, designated by the
Attorney General under paragraph (1) of subsection (j) of this Code
section.
(2)
'Documentary material' includes the original or any copy of any book, record,
report, memorandum, paper, communication, tabulation, chart, or other document
or data compilations stored in or accessible through computer or other
information retrieval system, together with instructions and all other materials
necessary to use or interpret such data compilations, and any product of
discovery.
(3)
'False claims law' means:
(A)
This article; and
(B)
Any Act of Congress or of the legislature which prohibits or makes available to
the federal government, state, or any local government in any court of this
state, of another state or the District of Columbia, or of local government or
of the United States any civil remedy with respect to any false claim against,
bribery of, or corruption of any officer or employee of any state, the District
of Columbia, local government, or the United States.
(4)
'False claims law investigation' means any inquiry conducted by any false claims
law investigator for the purpose of ascertaining whether any person is or has
been engaged in any violation of a false claims law.
(5)
'False claims law investigator' means any attorney or investigator employed by
the Department of Law or any other agency of the federal government, state, or
any local government who is charged with the duty of enforcing or carrying into
effect any false claims law, or any officer or employee of the state or local
government or the United States acting under the direction and supervision of
such attorney or investigator in connection with a false claims law
investigation.
(6)
'Official use' means any use that is consistent with the law and the regulations
and policies of the Department of Law or any other agency of the federal
government, state, or any local government participating in any of the matters
in question, including use in connection with internal memoranda, and reports;
communications between the Attorney General or any other agency of the federal
government, state, or any local government participating in the matters in
question and any other agency of the federal government, state, or any local
government, or a contractor of an agency of the federal government, state, or
any local government, undertaken in furtherance of a federal, state, or local
government or other governmental investigation or prosecution of a case;
interviews of any qui tam relator or other witness; oral examinations;
depositions; preparation for and response to civil discovery requests;
introduction into the record of a case or proceeding; applications, motions,
memoranda, and briefs submitted to a court or other tribunal; and communications
with federal, state, or local government or other governmental investigators,
auditors, consultants and experts, the counsel of other parties, arbitrators,
and mediators, concerning an investigation, case, or proceeding.
(7)
'Person' means any natural person, partnership, corporation, association, or
other legal entity, including any state or local government or political
subdivision of a state.
(8)
'Product of discovery' includes:
(A)
The original or duplicate of any deposition, interrogatory, document, thing,
result of the inspection of land or other property, examination, or admission
which is obtained by any method of discovery in any judicial or administrative
proceeding of an adversarial nature;
(B)
Any digest, analysis, selection, compilation, or derivation of any item listed
in subparagraph (A) of this paragraph; and
(C)
Any index or other manner of access to any item listed in subparagraph (A) of
this paragraph.
(b)(1)
For purposes of this Code section, whenever the Attorney General, or his or her
designee, has reason to believe that any person may be in possession, custody,
or control of any documentary material or information relevant to a false claims
law investigation, the Attorney General, or his or her designee, may, before
commencing a civil proceeding under subsection (a) of Code Section 23-3-122 or
other false claims law, or making an election under subsection (b) of Code
Section 23-3-122, issue in writing and cause to be served upon such person a
civil investigative demand requiring such person to:
(A)
Produce such documentary material for inspection and copying;
(B)
Answer in writing written interrogatories with respect to such documentary
material or information;
(C)
Give oral testimony concerning such documentary material or information;
or
(D)
Furnish any combination of such documentary material, answers, or
testimony.
The
Attorney General may delegate the authority to issue civil investigative demands
under this subsection, including to a district attorney or other local
government attorney. 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 Code section, a copy of such demand upon the person from whom
the discovery was obtained and shall notify the person to whom such demand is
issued of the date on which such copy was served. Any information obtained by
the Attorney General or a designee of the Attorney General under this Code
section may be shared with any qui tam relator if the Attorney General or such
designee determine it is necessary as part of any false claims law
investigation.
(2)(A)
Each civil investigative demand issued under paragraph (1) of this subsection
shall state the nature of the conduct constituting the alleged violation of a
false claims law which is under investigation and the applicable provision of
law alleged to have been violated.
(B)
If such demand is for the production of documentary material, the demand
shall:
(i)
Describe each class of documentary material to be produced with such
definiteness and certainty as to permit such documentary material to be fairly
identified;
(ii)
Prescribe a return date for each such class which will provide a reasonable
period of time within which the documentary material so demanded may be
assembled and made available for inspection and copying; and
(iii)
Identify the false claims law investigator to whom such documentary material
shall be made available.
(C)
If such demand is for answers to written interrogatories, the demand
shall:
(i)
Set forth with specificity the written interrogatories to be
answered;
(ii)
Prescribe dates at which time the answers to such written interrogatories shall
be submitted; and
(iii)
Identify the false claims law investigator to whom such answers shall be
submitted.
(D)
If such demand is for the giving of oral testimony, the demand
shall:
(i)
Prescribe a date, time, and place at which the oral testimony shall be
commenced;
(ii)
Identify a false claims law investigator who shall conduct the examination and
the custodian to whom the transcript of such examination shall be
submitted;
(iii)
Specify that such attendance and testimony are necessary to the conduct of the
investigation;
(iv)
Notify the person receiving the demand of the right to be accompanied by an
attorney and any other representative; and
(v)
Describe the general purpose for which the demand is being issued and the
general nature of the testimony, including the primary areas of inquiry, which
will be taken pursuant to the demand.
(E)
Any civil investigative demand issued under this Code section which is an
express demand for any product of discovery shall not be returned or returnable
until 20 days after a copy of such demand has been served upon the person from
whom the product of discovery was obtained.
(F)
The date prescribed for the commencement of oral testimony pursuant to a civil
investigative demand issued under this Code section shall be a date which is not
less than seven days after the date on which such demand is received, unless the
Attorney General or his or her designee determines that exceptional
circumstances are present which warrant the commencement of such testimony
within a lesser period of time.
(G)
The Attorney General or his or her designee shall not authorize the issuance
under this Code 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.
(c)(1)
A civil investigative demand issued under subsection (b) of this Code section
shall not require the production of any documentary material, the submission of
any answers to written interrogatories, or the giving of any oral testimony if
such documentary material, answers, or testimony would be protected from
disclosure under:
(A)
Standards applicable to subpoenas or subpoenas duces tecum issued by a court of
the state or of the United States to aid in a grand jury investigation;
or
(B)
Standards applicable to discovery requests under Chapter 11 of Title 9, the
'Georgia Civil Practice Act,' to the extent that the application of such
standards to any such demand is appropriate and consistent with the provisions
and purposes of this Code section.
(2)
Any such demand which is an express demand for any product of discovery
supersedes any inconsistent order, rule, or provision of law, other than this
Code section, preventing or restraining disclosure of such product of discovery
to any person. Disclosure of any product of discovery pursuant to any such
express demand shall not constitute a waiver of any right or privilege which the
person making such disclosure may be entitled to invoke to resist discovery of
trial preparation materials.
(d)(1)
Any civil investigative demand issued under subsection (b) of this Code section
may be served in this state by a false claims law investigator or by a sheriff,
deputy sheriff, marshal, or deputy marshal at any place within the territorial
jurisdiction of any court of this state.
(2)
Any such demand or any petition filed under subsection (k) of this Code section
may be served upon any person who is not found within the territorial
jurisdiction of any court of this state in such manner as applicable law
prescribes for service outside this state. To the extent that the courts of
this state can assert jurisdiction over any such person consistent with due
process, any such court shall have the same jurisdiction to take any action
respecting compliance with this Code section by any such person that such court
would have if such person were personally within the jurisdiction of such court.
Compliance with this Code section may also be enforced in courts of other
states, of the District of Columbia, and of the United States.
(e)(1)
Service of any civil investigative demand issued under subsection (b) of this
Code section or of any petition filed under subsection (k) of this Code section
may be made upon a partnership, corporation, association, or other legal entity
by:
(A)
Delivering an executed copy of such demand or petition to any partner, executive
officer, managing agent, or general agent of the partnership, corporation,
association, or entity, or to any agent authorized by appointment or by law to
receive service of process on behalf of such partnership, corporation,
association, or entity;
(B)
Delivering an executed copy of such demand or petition to the principal office
or place of business of the partnership, corporation, association, or entity;
or
(C)
Depositing an executed copy of such demand or petition via the United States
Postal Service by registered or certified mail or statutory overnight delivery,
return receipt requested, addressed to such partnership, corporation,
association, or entity at its principal office or place of
business.
(2)
Service of any such demand or petition may be made upon any natural person
by:
(A)
Delivering an executed copy of such demand or petition to the person;
or
(B)
Depositing an executed copy of such demand or petition via the United States
Postal Service by registered or certified mail or statutory overnight delivery,
return receipt requested, addressed to the person at the person's residence or
principal office or place of business.
(f)
A verified return by the individual serving any civil investigative demand
issued under subsection (b) of this Code section or any petition filed under
subsection (k) of this Code section setting forth the manner of such service
shall be proof of such service. In the case of service by registered or
certified mail or statutory overnight delivery, such return shall be accompanied
by the return post office receipt or other receipt of delivery of such
demand.
(g)(1)
The production of documentary material in response to a civil investigative
demand served under this Code section shall be made under a sworn certificate,
in such 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 such production and authorized to act
on behalf of such person.
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 claims law
investigator identified in the demand.
(2)
Any person upon whom any civil investigative demand for the production of
documentary material has been served under this Code section shall make such
documentary material available for inspection and copying to the false claims
law investigator identified in such demand at the principal place of business of
such person, or at such other place as the false claims law investigator and the
person thereafter may agree and prescribe in writing, or as the court may direct
under paragraph (1) of subsection (k) of this Code section. Such documentary
material shall be made so available on the return date specified in such demand,
or on such later date as the false claims law investigator may prescribe in
writing. Such person may, upon written agreement between the person and the
false claims law investigator, substitute copies for originals of all or any
part of such documentary material.
(h)
Each interrogatory in a civil investigative demand served under this Code
section shall be answered separately and fully in writing under oath and shall
be submitted under a sworn certificate, in such form as the demand designates,
by:
(1)
In the case of a natural person, the person to whom the demand is directed;
or
(2)
In the case of a person other than a natural person, the person or persons
responsible for answering each interrogatory.
If
any 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.
(i)(1)
The examination of any person pursuant to a civil investigative demand for oral
testimony served under this Code section shall be taken before an officer
authorized to administer oaths and affirmations by the laws of this state, or of
the United States, or of 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 by 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 shall not preclude the taking of testimony by any
means authorized by and in a manner consistent with Chapter 11 of Title 9, the
'Georgia Civil Practice Act.'
(2)
The false 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 or local government, any person who
may be agreed upon by the attorney for the state or local government and the
person giving the testimony, the officer before whom the testimony is to be
taken, and any stenographer taking such testimony.
(3)
The oral testimony of any person taken pursuant to a civil investigative demand
served under this Code section shall be taken in the county within which such
person resides, is found, or transacts business, or in such other place as may
be agreed upon by the false claims law investigator conducting the examination
and such person.
(4)
When the testimony is fully transcribed, the false 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 such examination and reading are waived by the witness. Any
changes in form or substance which the witness desires to make shall be entered
and identified upon the transcript by the officer or the false claims law
investigator, with a statement of the reasons given by the witness for making
such 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 transcript is not signed by the witness within 30 days after being
afforded a reasonable opportunity to examine it, the officer or the false claims
law investigator shall sign it and state on the record the fact of the waiver,
illness, absence, or the refusal to sign of the witness, together with the
reasons, if any, given therefor.
(5)
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 claims
law investigator shall promptly deliver the transcript, or send the transcript
by registered or certified mail, to the custodian.
(6)
Upon payment of reasonable charges therefor, the false claims law investigator
shall furnish a copy of the transcript to the witness only, except that the
Attorney General or his or her designee may, for good cause, limit such witness
to inspection of the official transcript of the witness's
testimony.
(7)(A)
Any person compelled to appear for oral testimony under a civil investigative
demand issued under subsection (b) of this Code section may be accompanied,
represented, and advised by counsel. Counsel may advise such person, in
confidence, with respect to any question asked of such person. Such 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 such 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. Such person may not otherwise object to or refuse
to answer any question, and shall not, directly or through counsel, otherwise
interrupt the oral examination. If such person refuses to answer any question,
a petition may be filed in the superior court under paragraph (1) of subsection
(k) of this Code section for an order compelling such person to answer such
question.
(B)
If such person refuses to answer any question on the grounds of the privilege
against self-incrimination, the testimony of such person may be compelled in
accordance with the provisions of Title 24.
(8)
Any person appearing for oral testimony under a civil investigative demand
issued under subsection (b) of this Code section shall be entitled to the same
fees and allowances which are paid to witnesses in the superior courts and state
courts of Georgia.
(j)(1)
The Attorney General shall designate a false claims law investigator to serve as
custodian of documentary material, answers to interrogatories, and transcripts
of oral testimony received under this Code section and shall designate such
additional false claims law investigators as the Attorney General determines
from time to time to be necessary to serve as deputies to the
custodian.
(2)(A)
A false claims law investigator who receives any documentary material, answers
to interrogatories, or transcripts of oral testimony under this Code section
shall transmit them to the custodian. The custodian shall take physical
possession of such documentary material, answers, or transcripts and shall be
responsible for the use made of them and for the return of documentary material
under paragraph (4) of this subsection.
(B)
The custodian may cause the preparation of such copies of such documentary
material, answers to interrogatories, or transcripts of oral testimony as may be
required for official use by any false claims law investigator or other officer
or employee of the Attorney General or any other agency of the state or local
government participating in an investigation of the matters in question. Such
documentary material, answers, and transcripts may be used by any such
authorized false claims law investigator or other officer or employee in
connection with the taking of oral testimony under this Code
section.
(C)
Except as otherwise provided in this subsection, no documentary material,
answers to interrogatories, or transcripts of oral testimony, or copies thereof,
while in the possession of the custodian, shall be available for examination by
any individual other than a false claims law investigator or other officer or
employee of the Attorney General or any other agency of the federal government
or of a state or local government participating in an investigation of the
matters in question authorized under subparagraph (B) of this paragraph. The
prohibition in the preceding sentence on the availability of documentary
material, answers, or transcripts shall not apply if consent is given by the
person who produced such documentary material, answers, or transcripts, or, in
the case of any product of discovery produced pursuant to an express demand for
such documentary material, consent is given by the person from whom the
discovery was obtained. Nothing in this subparagraph is intended to prevent
disclosure to the General Assembly, including any committee or subcommittee of
the General Assembly, or to any other agency of the state or local government or
the United States for use by such agency in furtherance of its statutory
responsibilities.
(D)
While in the possession of the custodian and under such reasonable terms and
conditions as the Attorney General shall prescribe:
(i)
Documentary material and answers to interrogatories shall be available for
examination by the person who produced such documentary material or answers, or
by a representative of that person authorized by that person to examine such
documentary material and answers; and
(ii)
Transcripts of oral testimony shall be available for examination by the person
who produced such testimony, or by a representative of that person authorized by
that person to examine such transcripts.
(3)
Whenever the Attorney General, an attorney for a local government, or an
attorney for any agency of a local government participating in an investigation
of the matter in question has been designated to appear before any court, grand
jury, or state or local government or federal agency in any case or proceeding,
the custodian of any documentary material, answers to interrogatories, or
transcripts of oral testimony received under this Code section may deliver to
such attorney such documentary material, answers, or transcripts for official
use in connection with any such case or proceeding as such attorney determines
to be required. Upon the completion of any such case or proceeding, such
attorney shall return to the custodian any such documentary material, answers,
or transcripts so delivered which have not passed into the control of such
court, grand jury, or agency through introduction into the record of such case
or proceeding.
(4)
If any documentary material has been produced by any person in the course of any
false claims law investigation pursuant to a civil investigative demand under
this Code section, and:
(A)
Any case or proceeding before the court or grand jury arising out of such
investigation, or any proceeding before any state or local government or federal
agency involving such documentary material, has been completed; or
(B)
No case or proceeding in which such documentary material may be used has 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 such investigation,
the
custodian shall, upon written request of the person who produced such
documentary material, return to such person any such documentary material, other
than copies furnished to the false claims law investigator under paragraph (2)
of subsection (g) of this Code section or made for the state under subparagraph
(B) of paragraph (2) of this subsection, which has not passed into the control
of any court, grand jury, or agency through introduction into the record of such
case or proceeding.
(5)
In the event of the death, disability, or separation from service of the
custodian of any documentary material, answers to interrogatories, or
transcripts of oral testimony produced pursuant to a civil investigative demand
under this Code section, or in the event of the official relief of such
custodian from responsibility for the custody and control of such documentary
material, answers, or transcripts, the Attorney General or his or her designee
shall promptly:
(A)
Designate another false claims law investigator to serve as custodian of such
documentary material, answers, or transcripts; and
(B)
Transmit in writing to the person who produced such documentary material,
answers, or testimony notice of the identity and address of the successor so
designated.
Any
person who is designated to be a successor under this paragraph shall have, with
regard to such documentary material, answers, or transcripts, the same duties
and responsibilities as were imposed by this Code section upon that person's
predecessor in office, except that the successor shall not be held responsible
for any default or dereliction which occurred before that
designation.
(k)(1)
Whenever any person fails to comply with any civil investigative demand issued
under subsection (b) of this Code section, or whenever satisfactory copying or
reproduction of any documentary material requested in such demand cannot be done
and such person refuses to surrender such documentary material, the Attorney
General or local government may file in any county or district in which such
person resides, is found, or transacts business and serve upon such person a
petition for an order of such court for the enforcement of the civil
investigative demand.
(2)(A)
Any person who has received a civil investigative demand issued under subsection
(b) of this Code section may file in the appropriate court and serve upon the
false claims law investigator identified in such demand a petition for an order
of the court to modify or set aside such demand. In the case of a petition
addressed to an express demand for any product of discovery, a petition to
modify or set aside such demand may be brought only in the superior court for
any county in which the proceeding in which such discovery was obtained is or
was last pending. Any petition under this subparagraph shall be
filed:
(i)
Within 20 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
(ii)
Within such longer period as may be prescribed in writing by any false claims
law investigator identified in the demand.
(B)
The petition shall specify each ground upon which the petitioner relies in
seeking relief under subparagraph (A) of this paragraph and may be based upon
any failure of the demand to comply with the provisions of this Code section or
upon any constitutional or other legal right or privilege of such 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.
(3)(A)
In the case of any civil investigative demand issued under subsection (b) of
this Code section which is an express demand for any product of discovery, the
person from whom such discovery was obtained may file in the superior court for
the county in which the proceeding in which such discovery was obtained is or
was last pending and serve upon any false claims law investigator identified in
the demand and upon the recipient of the demand a petition for an order of such
court to modify or set aside those portions of the demand requiring production
of any such product of discovery. Any petition under this subparagraph shall be
filed:
(i)
Within 20 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
(ii)
Within such longer period as may be prescribed in writing by any false claims
law investigator identified in the demand.
(B)
The petition shall specify each ground upon which the petitioner relies in
seeking relief under subparagraph (A) of this paragraph 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 Code 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.
(4)
At any time during which any custodian is in custody or control of any
documentary material or answers to interrogatories produced by, or transcripts
of oral testimony given by, any person in compliance with any civil
investigative demand issued under subsection (b) of this Code section, such
person and, in the case of an express demand for any product of discovery, the
person from whom such discovery was obtained, may file in the superior court for
any county within which the office of such custodian is situated and serve upon
such custodian a petition for an order of such court to require the performance
by the custodian of any duty imposed upon the custodian by this Code
section.
(5)
Whenever any petition is filed under this subsection in any superior court for
any county, such 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 Code section. Any final order so entered shall be
subject to appeal. Any disobedience of any final order entered under this Code
section by any court shall be punished as a contempt of the court.
(6)
Chapter 11 of Title 9, the 'Georgia Civil Practice Act,' shall apply to any
petition filed in this state under this subsection, to the extent that such
rules are not inconsistent with the provisions of this Code
section.
(l)
Any documentary material, answers to written interrogatories, or oral testimony
provided under any civil investigative demand issued under subsection (b) of
this Code section shall be exempt from disclosure under Article 4 of Chapter 18
of Title 50.
23-3-126.
(a)
The provisions of this article shall not be deemed exclusive, and the remedies
provided for in this article shall be in addition to any other remedies provided
for in any other law or available under common law.
(b)
This Act shall be broadly construed and applied to promote the public's interest
in combating fraud and false claims directed at the public's funds.
23-3-127.
If
a civil action can be commenced pursuant to Article 7B of Chapter 4 of Title 49,
the 'State False Medicaid Claims Act,' the claimant shall proceed under Article
7B of Chapter 4 of Title
49."
PART
II
SECTION 2-1.
SECTION 2-1.
Chapter
4 of Title 49 of the Official Code of Georgia Annotated, relating to public
assistance, is amended by revising Article 7B, the "State False Medicaid Claims
Act," as follows:
"ARTICLE
7B
49-4-168.
As
used in this article, the term:
(1)
'Claim' includes any request or demand, whether under a contract or otherwise,
for money,
property, or services
money or
property, whether or not the Georgia Medicaid program or this state has title to
such money or property, which is made to
the Georgia Medicaid program,
or
to any officer, employee, fiscal intermediary,
grantee,
agent, or contractor of the Georgia
Medicaid program, or to other persons or entities if it results in payments by
the Georgia Medicaid program, if the Georgia Medicaid program
provides, has
provided, or will provide any portion of
the money or property requested or
demanded;,
or if the Georgia Medicaid program will
reimburse the contractor, grantee, or other recipient for any portion of the
money or property requested or
demanded; or
if the money or property is to be spent or used on behalf of or to advance the
Georgia Medicaid program. A claim
includes a request or demand made orally, in writing, electronically, or
magnetically. Each claim may be treated as a separate claim.
(2)
'Knowing' and 'knowingly'
mean
requires no
proof of specific intent to defraud and
means that a person, with respect to
information:
(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.
No proof of
specific intent to defraud is required.
(3)
'Material'
means having a natural tendency to influence, or be capable of influencing, the
payment or receipt of money or property.
(4)
'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 or
regulation, or from retention of any overpayment.
(5)
'Person' means any natural person, corporation, company, association, firm,
partnership, society, joint-stock company, or any other entity with capacity to
sue or be sued.
49-4-168.1.
(a)
Any person who:
(1)
Knowingly presents or causes to be presented to the Georgia Medicaid program 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
to get a
false or fraudulent claim paid or approved by the Georgia Medicaid
program
material to a
false or fraudulent claim;
(3)
Conspires to defraud the Georgia Medicaid program by getting a false or
fraudulent claim allowed or paid;
(4)
Has possession, custody, or control of property or money used or to be used by
the Georgia Medicaid program
and,
intending to defraud the Georgia Medicaid program or willfully to conceal the
property, delivers, or causes to be delivered, less property than the amount for
which the person receives a certificate of
receipt
knowingly
delivers, or causes to be delivered, less than all of such property or
money;
(5)
Being
Is
authorized to make or deliver a document certifying receipt of property used, or
to be used, by the Georgia Medicaid program and, intending to defraud the
Georgia Medicaid program, makes or delivers the receipt without completely
knowing that the information on the receipt is true;
(6)
Knowingly buys, or receives as a pledge of an obligation or debt, public
property from an officer or employee of the Georgia Medicaid program who
lawfully may not sell or pledge the property; or
(7)
Knowingly makes, uses, or causes to be made or used a false record or statement
to conceal,
avoid, or decrease an obligation to pay, repay, or transmit money or property to
the State of Georgia
material to an
obligation to pay or transmit property or money to the Georgia Medicaid program,
or knowingly conceals or knowingly and improperly avoids or decreases an
obligation to pay or transmit property or money to the Georgia Medicaid
program,
shall
be liable to the State of Georgia for a civil penalty of not less than $5,500.00
and not more than $11,000.00 for each false or fraudulent claim, plus three
times the amount of damages which the Georgia Medicaid program sustains because
of the act of such person.
(b)
The provisions of subsection (a) of this Code section notwithstanding, if the
court finds that:
(1)
The person committing the violation of this subsection furnished officials of
the Georgia Medicaid program with all information known to such person about the
violation within 30 days after the date on which the defendant first obtained
the information;
(2)
Such person fully cooperated with any government investigation of such
violation; and
(3)
At the time such person furnished the Georgia Medicaid program with the
information about the violation, no criminal prosecution, civil action, or
administrative action had commenced under this article with respect to such
violation, and the person did not have actual knowledge of the existence of an
investigation into such violation,
the
court may assess not more than two times the amount of the actual damages which
the Georgia Medicaid program sustained because of the act of such
person.
(c)
A person violating any provision of subsection (a) of this Code section shall
also be liable to this state for all costs of any civil action brought to
recover the damages and penalties provided under this article.
49-4-168.2.
(a)
The Attorney General shall be authorized to investigate suspected, alleged, and
reported violations of this article. If the Attorney General finds that a
person has violated or is violating this article, then the Attorney General may
bring a civil action against such person under this article.
(b)
Subject to the exclusions set forth in this Code section, a civil action under
this article may also be brought by a private person. A civil action shall be
brought in the name of the State of Georgia. The civil action may be dismissed
only if the court and the Attorney General give written consent to the dismissal
and state the reasons for consenting to such dismissal.
(c)
Where a private person brings a civil action under this article, such person
shall follow the following special procedures:
(1)
A copy of the complaint and written disclosure of substantially all material
evidence and information the person possesses shall be served on the Attorney
General;
(2)
The complaint shall be filed in camera, shall remain under seal for at least 60
days, and shall not be served on the defendant until the court so orders. The
purpose of the period under seal shall be to allow the Attorney General to
investigate the allegations of the complaint. The Attorney General may elect to
intervene and proceed with the civil action within 60 days after it receives
both the complaint and the material evidence and information;
(3)
The Attorney General may, for good cause shown, move the court for extensions of
the time during which the complaint remains under seal under paragraph (2) of
this subsection. Any such motions may be supported by affidavits or other
submissions in camera;
(4)
Before the expiration of the 60 day period or any extensions obtained under
paragraph (3) of this subsection, the Attorney General shall:
(A)
Proceed with the civil action, in which case the civil action shall be conducted
by the Attorney General; or
(B)
Notify the court that it declines to take over the civil action, in which case
the person bringing the civil action shall have the right to proceed with the
civil action;
(5)
The defendant shall not be required to respond to any complaint filed under this
Code section until 30 days after the complaint is unsealed and served upon the
defendant; and
(6)
When a person brings a civil action under this subsection, no person other than
the Attorney General may intervene or bring a related civil action based on the
facts underlying the pending civil action.
(d)(1)
If the Attorney General elects to intervene and proceed with the civil action,
he or she shall have the primary responsibility for prosecuting the civil action
and shall not be bound by an act of the person bringing such civil action. Such
person shall have the right to continue as a party to the civil action, subject
to the limitations set forth in this subsection.
(2)
The Attorney General may dismiss the civil action, notwithstanding the
objections of the person initiating the civil action, if the person has been
notified by the Attorney General of the filing of the motion and the court has
provided the person with an opportunity for a hearing on the
motion.
(3)
The Attorney General may settle the civil action with the defendant
notwithstanding the objections of the person initiating the civil action 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, such hearing may be held in camera.
(4)
Upon a showing by the Attorney General that unrestricted participation during
the course of the litigation by the person initiating the civil action would
interfere with or unduly delay the Attorney General's litigation of the case, or
would be repetitious, irrelevant, or for purposes of harassment, the court may,
in its discretion, impose limitations on the person's participation, such
as:
(A)
Limiting the number of witnesses the person may call;
(B)
Limiting the length of the testimony of such witnesses;
(C)
Limiting the person's cross-examination of witnesses; or
(D)
Otherwise limiting the participation by the person in the
litigation.
(e)
Upon a showing by the defendant that unrestricted participation during the
course of the litigation by the person initiating the civil action would be for
purposes of harassment or would cause the defendant undue burden or unnecessary
expense, the court may limit the participation by the person in the
litigation.
(f)
If the Attorney General elects not to proceed with the civil action, the person
who initiated the civil action shall have the right to conduct the civil action.
If the Attorney General so requests, he or she shall be served with copies of
all pleadings filed in the civil action and shall be supplied with copies of all
deposition transcripts. When a person proceeds with the civil action, the court
may nevertheless permit the Attorney General to intervene at a later date for
any purpose, including, but not limited to, dismissal of the civil action
notwithstanding the objections of the person initiating the civil action if such
person has been notified by the Attorney General of the filing of such motion
and the court has provided such person with an opportunity for a hearing on such
motion.
(g)
Whether or not the Attorney General proceeds with the civil action, upon a
showing by the Attorney General that certain actions of discovery by the person
initiating the civil action would interfere with the Attorney General's
investigation or prosecution of a criminal or civil matter arising out of the
same facts, the court may stay such discovery for a period of not more than 60
days. Such a showing shall be conducted in camera. The court may extend the 60
day period upon a further showing in camera that the Attorney General has
pursued the criminal or civil investigation or proceedings with reasonable
diligence and any proposed discovery in the civil action will interfere with the
ongoing criminal or civil investigation or proceedings.
(h)
Notwithstanding subsections (b) and (c) of this Code section, the Attorney
General may elect to pursue this state's claim through any alternate remedy
available to the Attorney General, including any administrative proceeding to
determine a civil money penalty. If any such alternate remedy is pursued in
another proceeding, the person initiating the civil action shall have the same
rights in such proceeding as such person would have had if the civil action had
continued under this Code section. Any finding of fact or conclusion of law
made in such other proceeding that has become final shall be conclusive on all
parties to a civil action under this Code section. For purposes of this
subsection, a finding or conclusion is final if it has been finally determined
on appeal to the appropriate court of the State of Georgia, if all time for
filing such an appeal with respect to the finding or conclusion has expired, or
if the finding or conclusion is not subject to judicial review.
(i)(1)
If the Attorney General proceeds with a civil action brought by a private person
under subsection (b) of this Code section, such person shall, subject to the
second sentence of this paragraph, receive at least 15 percent but not more than
25 percent of the proceeds of the civil action or settlement of the claim,
depending upon the extent to which the person substantially contributed to the
prosecution of the civil action. Where the civil action is one which the court
finds to be based primarily on disclosures of specific information, other than
information provided by the person bringing the civil action, relating to
allegations or transactions in a criminal, civil, or administrative hearing, in
a legislative, administrative, or Attorney General hearing, audit, or
investigation, or from the news media, the court may award such sums as it
considers appropriate, but in no case more than 10 percent of the proceeds,
taking into account the significance of the information and the role of the
person bringing such civil action in advancing the case to litigation. Any
payment to a person under the first or second sentence of this paragraph shall
be made from the proceeds. The remaining proceeds shall be payable to the
Indigent
Care Trust Fund to be used for the purposes set forth in Code Section
31-8-154
State of
Georgia, by and through the Georgia Department of Community Health, for the
purposes of operating, sustaining, protecting, and administering the Georgia
Medicaid program. Any such person shall
also receive an amount for reasonable expenses which the court finds to have
been necessarily incurred, plus reasonable attorney's fees and costs. All such
expenses, fees, and costs shall be awarded against the defendant.
(2)
If the Attorney General does not proceed with a civil action under this Code
section, the person bringing the civil action or settling the claim shall
receive an amount which the court decides is reasonable for collecting the civil
penalty and damages. Such amount shall be not less than 25 percent and not more
than 30 percent of the proceeds of the civil action or settlement and shall be
paid out of such proceeds. The remaining proceeds shall be payable to the
Indigent
Care Trust Fund to be used for the purposes set forth in Code Section
31-8-154
State of
Georgia, by and through the Georgia Department of Community Health, for the
purposes of operating, sustaining, protecting, and administering the Georgia
Medicaid program. Such person shall also
receive an amount for reasonable expenses which the court finds to have been
necessarily incurred, plus reasonable attorney's fees and costs. All such
expenses, fees, and costs shall be awarded against the defendant.
(3)
Whether or not the Attorney General proceeds with the civil action, if the court
finds that the civil action was brought by a person who planned and initiated
the violation of Code Section 49-4-168.1 upon which the civil action was
brought, then the court may, to the extent the court considers appropriate,
reduce the share of the proceeds of the civil action which the person would
otherwise receive under paragraph (1) or (2) of this subsection, 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
civil action is convicted of criminal conduct arising from his or her role in
the violation of Code Section 49-4-168.1, such person shall be dismissed from
the civil action and shall not receive any share of the proceeds of the civil
action. Such dismissal shall not prejudice the right of the State of Georgia to
continue the civil action, represented by the Attorney General.
(4)
If the Attorney General does not proceed with the civil action and the person
bringing the civil action conducts the civil action, the court may award to the
defendant its reasonable attorney's fees and expenses against the person
bringing the civil action if the defendant prevails in the civil action and the
court finds that the claim of the person bringing the civil action was clearly
frivolous, clearly vexatious, or brought primarily for purposes of
harassment.
(5)
The State of Georgia shall not be liable for expenses which a private person
incurs in bringing a civil action under this article.
(j)
For
purposes of this subsection, 'public employee,' 'public official,' and 'public
employment' shall include federal, state, and local employees and
officials.
(1)
No civil action may be brought under this article by a person who is or was a
public employee or public official if the allegations of such action are
substantially based upon:
(A)
Allegations of wrongdoing or misconduct which such person had a duty or
obligation to report or investigate within the scope of his or her public
employment or office; or
(B)
Information or records to which such person had access as a result of his or her
public employment or office.
(2)
No court shall have jurisdiction over a civil action under this article based
upon the public disclosure of allegations or transactions in a criminal, civil,
or administrative hearing, in a legislative, administrative, or Attorney General
report, hearing, audit, or investigation, or from the news media, unless the
civil action is brought by the Attorney General or unless the person bringing
the civil action is an original source of the information. For purposes of this
paragraph, 'original source' means an individual who has direct and independent
knowledge of the information on which the allegations are based and has
voluntarily provided the information to this state before filing a civil action
under this Code section based on such information.
(3)
In no event may a person bring a civil action under this article which is based
upon allegations or transactions which are the subject of a civil or
administrative proceeding to which the State of Georgia is already
party.
(k)(4)
No civil action may be brought under this article with respect to any claim
relating to the assessment, payment, nonpayment,
refund,
or collection of taxes pursuant to any provisions of Title 48.
(l)(1)
As used in this subsection, the term 'original source' means an individual
who:
(A)
Prior to public disclosure, has voluntarily disclosed to the Attorney General
the information on which allegations or transactions in a claim are based;
or
(B)
Has knowledge that is independent of and materially adds to publicly disclosed
allegations or transactions and who has voluntarily provided such information to
the Attorney General before filing a civil action under this Code
section.
(2)
The court shall dismiss a civil action or claim under this Code section, unless
opposed by the Attorney General, if substantially the same allegations or
transactions as alleged in the action or claim were publicly
disclosed:
(A)
In any criminal, civil, or administrative hearing in which the State of Georgia
or its employee, agent, or contractor is a party;
(B)
In a congressional, legislative, or other state or federal report, hearing,
audit, or investigation; or
(C)
From the news media,
unless
the civil action is brought by the Attorney General or the person bringing the
civil action is an original source of the information.
49-4-168.3.
(a)
In any civil action brought under this article, the State of Georgia or person
bringing the civil action shall be required to prove all essential elements of
the cause of civil action, including damages, by a preponderance of the
evidence.
(b)
Except as otherwise provided in this article, all civil actions brought under
this article shall be governed by the provisions of Chapter 11 of Title 9, the
'Georgia Civil Practice Act.'
(c)
If the Attorney General elects to intervene and proceed with a civil action
brought pursuant to this article, the Attorney General may file his or her own
complaint or amend the complaint of a person who has brought a civil action
under this article to clarify or add detail to the claims in which the Attorney
General is intervening and to add any additional claims with respect to which
the State of Georgia contends it is entitled to relief. For purposes of the
statute of limitations, any such pleading by the Attorney General shall relate
back to the filing date of the complaint of the person who originally brought
the civil action, to the extent that the claim of the State of Georgia arises
out of the conduct, transactions, or occurrences set forth, or attempted to be
set forth, in the original complaint by such person.
49-4-168.4.
Any
employee who is discharged, demoted, suspended, threatened, harassed, or in any
other manner discriminated against in the terms and conditions of employment by
his or her employer because of lawful acts done by the employee, on behalf of
the employee or others, in furtherance of a civil action under this article,
including investigation for, initiation of, testimony for, or assistance in a
civil action filed or to be filed under this article, shall be entitled to all
relief necessary to make the employee whole. Such relief shall include
reinstatement with the same seniority status such employee would have had but
for the discrimination, two times the amount of back pay, interest on the back
pay award, and compensation for any special damages sustained as a result of the
discrimination, including litigation costs and reasonable attorney's fees. An
employee may bring a civil action in an appropriate court of the State of
Georgia for the relief provided in this Code section.
(a)
Any employee, contractor, or agent shall be entitled to all relief necessary to
make such employee, contractor, or agent whole, if that employee, contractor, or
agent is discharged, demoted, suspended, threatened, harassed, or in any other
manner discriminated against in the terms and conditions of employment because
of lawful acts done by such employee, contractor, agent or associated others in
furtherance of a civil action under this Code section or other efforts to stop
one or more violations of this article.
(b)
Relief under subsection (a) of this Code section shall include reinstatement
with the same seniority status that such employee, contractor, or agent would
have had but for the discrimination, two times the amount of back pay, interest
on the back pay, and compensation for any special damages sustained as a result
of the discrimination, including litigation costs and reasonable attorney's
fees. A civil action under this subsection may be brought in an appropriate
court of this state for the relief provided in this Code section.
(c)
Notwithstanding Code Section 49-4-168.5, a civil action under this Code section
may not be brought more than three years after the date when the discrimination
occurred.
49-4-168.5.
All
civil actions under this article shall be filed pursuant to Code Section
49-4-168.2 within six years after the date the violation was committed, or
three
four
years after the date when facts material to the right of civil action are known
or reasonably should have been known by the state official charged with the
responsibility to act in the circumstances, whichever occurs last; provided,
however, that in no event shall any civil action be filed more than ten years
after the date upon which the violation was committed.
49-4-168.6.
All
civil actions brought against natural persons under this article shall be
brought in the county where the defendant or, in the case of multiple defendants
or of defendants who are not residents of the State of Georgia, in any county
where any one defendant resides, can be found, transacts business, or commits an
act in furtherance of the submittal of a false or fraudulent claim to the
Georgia Medicaid program."
PART
III
SECTION 3-1.
SECTION 3-1.
All
laws and parts of laws in conflict with this Act are repealed.