NY Soc Serv L § 145-B (2021)
2021 New York Laws SOS - Social Services Article 5 - Assistance and Care Title 1 - General Provisions 145-B - False Statements; Actions for Treble Damages.

§ 145-b. False statements; actions for treble damages. 1. (a) It shall be  unlawful for any person, firm or corporation knowingly by means of a false statement or representation, or by deliberate concealment  of  any material  fact,  or  other  fraudulent  scheme  or  device, on behalf of himself or others, to attempt to obtain or to obtain payment from public funds for  services  or  supplies  furnished  or  purportedly  furnished pursuant to this chapter.  (b)  For  purposes  of  this  section,  "statement  or representation" includes, but is not limited to: a claim for payment made to the  state, a  political  subdivision of the state, or an entity performing services under contract to the state or a political subdivision of the state;  an acknowledgment,  certification,  claim,  ratification  or report of data which serves as the basis for a claim or a rate  of  payment,  financial information  whether in a cost report or otherwise, health care services available or rendered, and the qualifications of a person that is or has rendered health care services.  (c) For purposes of this section, a person, firm  or  corporation  has attempted to obtain or has obtained public funds when any portion of the funds  from which payment was attempted or obtained are public funds, or any public funds are used to reimburse or make prospective payment to an entity from which payment was attempted or obtained.   2. For any violation of subdivision one,  the  local  social  services district  or the state shall have a right to recover civil damages equal to three times the amount by which any figure is falsely  overstated  or in  the  case of non-monetary false statements or representations, three times the amount of damages which the state,  political  subdivision  of the  state, or entity performing services under contract to the state or political subdivision of the state sustain as a result of the  violation or  five  thousand dollars, whichever is greater. Notwithstanding part C of chapter fifty-eight of the laws of two thousand five: (a)  For  civil damages  collected  by a local social services district, relating to the medical  assistance  program,  pursuant  to  a   judgment   under   this subdivision,  such amounts shall be apportioned between the local social services district and the state. If the violation occurred: (i) prior to January first, two thousand six, the amount  apportioned  to  the  local social  services  district shall be the local share percentage in effect immediately prior to such date as certified by the division  of  budget, or (ii) after January first, two thousand six, the amount apportioned to the  local  social  services  district shall be based on a reimbursement schedule, created by the office of Medicaid inspector general, in effect at the time the violation  occurred;  provided  that,  if  there  is  no schedule  in  effect at the time the violation occurred, the schedule to be  used  shall  be  the  first  schedule  adopted  pursuant   to   this subdivision.  Such  schedule  shall provide for reimbursement to a local social services district in an amount between ten and fifteen percent of the gross amount collected. Such schedule shall be set on  a  county  by county   basis  and  shall  be  periodically  reviewed  and  updated  as necessary; provided, however, that any such updated schedule  shall  not be  less  than ten percent nor greater than fifteen percent of the gross amount collected; and (b) For  civil  damages  collected  by  the  state relating  to the medical assistance program pursuant to a judgment under this subdivision, the local social services district shall  be  entitled to  compensation up to fifteen percent of the gross amount collected for such  participation,  including  but  not  limited  to   identification, investigation  or  development of a case, commensurate with its level of effort or value added as determined by the Medicaid inspector general.   3. If any provider or supplier of services in the program  of  medical assistance  is  required  to  refund or repay all or part of any payment  received by said provider or  supplier  under  the  provisions  of  this chapter and title XIX of the federal social security act, said refund or repayment shall bear interest from the date the payment was made to said provider  or  supplier to the date of said refund or repayment. Interest shall be at the maximum legal rate in effect on the date the payment was made to said provider or supplier.   4. (a) The  Medicaid  inspector  general,  in  consultation  with  the department  of  health, may require the payment of a monetary penalty as restitution to the medical assistance program by any person who fails to comply with the standards of the medical assistance program or standards of generally accepted medical practice in a substantial number of  cases or grossly and flagrantly violated such standards and:  (i) receives, or causes to be received by another person, payment from the  medical  assistance program when such person knew, or had reason to know, that:  (A) the payment involved the providing or ordering of  care,  services or  supplies  that  were medically improper, unnecessary or in excess of the documented medical needs of the person to whom they were furnished;  (B) the care, services or supplies were not provided as claimed;  (C) the  person  who  ordered,  prescribed,  or  furnished  the  care, services  or  supplies  which were medically improper, unnecessary or in excess of the documented medical need of the person to  whom  they  were furnished  was suspended or excluded from the medical assistance program at the time the care, services or supplies were furnished; or  (D) the services or supplies for which payment was received were  not, in fact, provided; or  (ii)  such  person  fails  to  grant  timely  access to facilities and records, upon reasonable notice, to the Medicaid inspector general,  the Medicaid  fraud  control  unit  of the attorney general's office, or the department of health for the purpose of audits, investigations, reviews, or  other  statutory  functions.  For  purposes  of  this  subparagraph, "reasonable   notice"  means  a  written  request  made  by  a  properly identified agent of the Medicaid inspector general, the  Medicaid  fraud control  unit  of  the  attorney  general's office, or the department of health either, during hours that the individual or entity  is  open  for business,  or  mailed  to the individual or entity to an address on file with the department of health or last known address. The  request  shall include  a statement of the authority for the request, the definition of "reasonable notice", and the penalties for failure to comply;  (iii) such person knew or should have known that  an  overpayment  has been  identified and does not report, return and explain the overpayment in  accordance  with  subdivision   six   of   section   three   hundred sixty-three-d of this article;  (iv)  such  person arranges or contracts, by employment, agreement, or otherwise, with an individual or entity that the person knows or  should know is suspended or excluded from the medical assistance program at the time  such  arrangement  or contract regarding activities related to the medical assistance program is made.  (v) For purposes of this paragraph, "person" as used  in  subparagraph (i)  does  not include recipients of the medical assistance program; and "person" as used in  subparagraphs  (ii)  --  (iv),  is  as  defined  in paragraph  (e) of subdivision (6) of section three hundred sixty-three-d of this chapter.  (b) In determining the amount of any monetary penalty to  be  imposed, the  Medicaid  inspector general, in consultation with the department of health, shall take into consideration the following:  (i) the number and total value of the  claims  for  payment  from  the medical  assistance  program  which  were  the  underlying  basis of the determination to impose a monetary penalty;  (ii)  the  effect,  if any, on the quality of medical care provided to recipients of medical assistance as a result of the acts of the person;  (iii) the degree of  culpability  of  the  person  in  committing  the proscribed actions and any mitigating circumstances;  (iv)  any  prior  violations  committed  by the person relating to the medical assistance program, Medicare or other social  services  programs which resulted in either a criminal or administrative sanction, penalty, or recoupment; and  (v)  any  other  facts  relating  to the nature and seriousness of the violations including any exculpatory facts.  (c) (i) For subparagraphs (i), (iii), and (iv)  of  paragraph  (a)  of this  subdivision, in no event shall the monetary penalty imposed exceed ten thousand dollars for each item or service which was the  subject  of the determination herein, except that where a penalty under this section has  been  imposed  on  a  person  within  the previous five years, such penalty shall not exceed  thirty  thousand  dollars  for  each  item  or service which was the subject of the determination herein.  (ii) For subparagraph (ii) of paragraph (a) of this subdivision, in no event  shall  the  monetary  penalty exceed fifteen thousand dollars for each day of the failure described in such subparagraph.  (d)  Amounts  collected  pursuant  to  this   subdivision   shall   be apportioned  between the local social services district and the state in accordance with the regulations of the department of health.  (e)  For  the  purposes  of  this  subdivision,  "gross  and  flagrant violation"  shall mean conduct which has an adverse effect on the fiscal integrity of the medical assistance program and:  (i) which substantially impairs the delivery of high  quality  medical care, services, or supplies; or  (ii)  which  substantially impairs the oversight and administration of the program.  (f) A person against whom a monetary penalty is  imposed  pursuant  to this  subdivision  shall  be entitled to notice and an opportunity to be heard, including the right to request  a  hearing  pursuant  to  section twenty-two of this chapter.   5.  When  in the course of conducting an investigation relating to the investigation relating to the medical assistance program, a local social services district deduces that a provider may  have  committed  criminal fraud,  it  shall  refer  the  case  to the office of Medicaid inspector general along with appropriate supporting information. The office  shall promptly  review  the  case  and,  if deemed appropriate, refer the case pursuant to subdivision seven of section thirty-two of the public health law. If the deputy attorney general for Medicaid fraud control accepts a referral  from  the  office  of  Medicaid  inspector  general  that  was identified,  investigated  or  developed  by  a  local  social  services district, and the state collects damages, the participating local social services district shall  be  entitled  to  compensation  up  to  fifteen percent   of   the   gross   amount  collected  for  such  participation commensurate with its level of effort or value added  as  determined  by the deputy attorney general for Medicaid fraud control. If the office of Medicaid  inspector  general  determines  that it is not appropriate for referral in accordance with subdivision seven of section  thirty-two  of the  public  health  law  the office of Medicaid inspector general shall further investigate the case, with notice  to  the  participating  local social services district, or return the case to the participating social services district, which may resume its investigation of the provider.