2023 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) such person had an obligation to identify, claim, and pay a  bonus
under  subdivision  three of section three hundred sixty-seven-w of this
article and such person failed to identify, claim and pay such bonus.
(vi) For purposes of this paragraph, "person" as used in  subparagraph
(i)  of  this  paragraph  does  not  include  recipients  of the medical
assistance program; and "person" as used in  subparagraphs  (ii),  (iii)
and  (iv)  of  this  paragraph,  is  as  defined  in  paragraph  (e)  of
subdivision six of section three hundred sixty-three-d of this  article;
and  "person"  as  used  in  subparagraph (v) of this paragraph includes

employers as defined in section  three  hundred  sixty-seven-w  of  this
article.
(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.
(iii) For subparagraph (v) of paragraph (a)  of  this  subdivision,  a
monetary penalty shall be imposed for conduct described in subparagraphs
(i),  (ii)  and  (iii)  of  paragraph (a) of subdivision five of section
three hundred sixty-seven-w of this article and  shall  not  exceed  one
thousand dollars per failure to identify, claim and pay a bonus for each
employee.
(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.