Analysis by the Legislative Reference Bureau

This bill restores a private individual's authority to bring a qui tam claim against a person who makes a false claim for medical assistance, which was eliminated in 2015 Wisconsin Act 55. A qui tam claim, as it relates to the Medical Assistance program under the bill, is a claim initiated by a private individual on his or her own behalf and on behalf of the state against a person who makes a false claim for medical assistance. The bill restores the language prior to the enactment of 2015 Wisconsin Act 55 that stated that, of moneys recovered as a result of a qui tam claim, a private individual may be awarded up to 30 percent of the amount recovered, depending upon certain factors, including the individual's role in advancement of the prosecution of the action. The individual may also be entitled to reasonable expenses incurred in bringing the action, as well as attorney fees. This bill also includes additional changes not included in the prior law to conform state law to the federal False Claims Act, including expanding provisions to facilitate qui tam actions and modifying the bases for liability to parallel the liability provisions under the federal False Claims Act. In addition to qui tam claims, the Department of Justice has independent authority to bring a claim against a person for making a false claim for medical assistance. This bill modifies provisions relating to DOJ's authority to parallel the liability and penalty standards relating to qui tam claims, specifically, applying the definition of the term “claim” and the forfeiture amounts provided under the federal False Claims Act.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB652,1 Section 1 . 20.9315 of the statutes is created to read:

AB652,2,3 20.9315 False claims for medical assistance; actions by or on behalf of state. (1) In this section:

AB652,2,4 (b) “Claim” has the meaning given in 31 USC 3729 (b) (2).

AB652,2,8 (d) “Knowingly" means, with respect to information, having actual knowledge of the information, acting in deliberate ignorance of the truth or falsity of the information, or acting in reckless disregard of the truth or falsity of the information. “Knowingly" does not mean specifically intending to defraud.

AB652,2,10 (de) “Material” means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.

AB652,2,11 (dm) “Medical assistance" has the meaning given under s. 49.43 (8).

AB652,2,12 (dr) “Obligation” has the meaning given in 31 USC 3729 (b) (3).

AB652,2,13 (dt) “Original source” has the meaning given in 31 USC 3730 (e) (4) (B).

AB652,2,16 (e) “Proceeds" includes damages, civil penalties, surcharges, payments for costs of compliance, and any other economic benefit realized by this state as a result of an action or settlement of a claim.

AB652,3,5 (2) Except as provided in sub. (3), any person who does any of the following is liable to this state for 3 times the amount of the damages that were sustained by the state or would have been sustained by the state, whichever is greater, because of the actions of the person, and shall forfeit, for each violation, an amount within the range specified under 31 USC 3729 (a):

AB652,3,7 (a) Knowingly presents or causes to be presented a false or fraudulent claim for medical assistance.

AB652,3,9 (b) Knowingly makes, uses, or causes to be made or used a false record or statement material to a false or fraudulent claim for medical assistance.

AB652,3,14 (dg) 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 Medical Assistance program, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Medical Assistance program.

AB652,3,15 (dr) Conspires to commit a violation under par. (a), (b), or (dg).

AB652,3,19 (3) The court may assess against a person who violates sub. (2) not less than 2 nor more than 3 times the amount of the damages sustained by the state because of the acts of the person, and shall not assess any forfeiture, if the court finds all of the following:

AB652,3,22 (a) The person who commits the acts furnished the attorney general with all information known to the person about the acts within 30 days after the date on which the person obtained the information.

AB652,3,23 (b) The person fully cooperated with any investigation of the acts by this state.

AB652,4,2 (c) At the time that the person furnished the attorney general with information concerning the acts, no criminal prosecution or civil or administrative enforcement action had been commenced with respect to any such act, and the person did not have actual knowledge of the existence of any investigation into any such act.

AB652,4,5 (5) (a) Except as provided in subs. (10) and (12), any person may bring a civil action as a qui tam plaintiff against a person who commits an act in violation of sub. (2) for the person and the state in the name of the state.

AB652,4,13 (b) The plaintiff shall serve upon the attorney general a copy of the complaint and documents disclosing substantially all material evidence and information that the person possesses. The plaintiff shall file a copy of the complaint with the court for inspection in camera. Except as provided in par. (c), the complaint shall remain under seal for a period of 60 days from the date of filing and shall not be served upon the defendant until the court so orders. Within 60 days from the date of service upon the attorney general of the complaint, evidence, and information under this paragraph, the attorney general may intervene in the action.

AB652,4,18 (bm) Any complaint filed by the state in intervention, whether filed separately or as an amendment to the qui tam plaintiff's complaint, shall relate back to the filing date of the qui tam plaintiff's complaint, to the extent that the state's claim arises out of the conduct, transactions, or occurrences set forth, or attempted to be set forth, in the qui tam plaintiff's complaint.

AB652,4,21 (c) The attorney general may, for good cause shown, move the court for one or more extensions of the period during which a complaint in an action under this subsection remains under seal.

AB652,4,23 (d) Before the expiration of the period during which the complaint remains under seal, the attorney general shall do one of the following: