Senate Committee Substitute

Any natural person who willfully prevents, obstructs, misleads, delays, or attempts to do any of the aforementioned with regard to communication of information relating to a violation of Medicaid fraud shall be guilty of a class D felony, and shall forever be excluded from participation as a Medicaid provider.

This act provides that any person may bring an action for Medicaid fraud on behalf of the person and the state. In such an action, a person who commits a violation is liable as provided by subsection 11 of Section 191.905, RSMo, but the amount of any civil penalty assessed by the court shall be reduced by the amount of any civil monetary penalty which the person has paid for a violation of the federal False Claims Act, if the violation is based on the same underlying facts upon which the state action was brought. The person bringing the action must give a copy of the petition to the attorney general, and must also disclose to the Attorney General all material information in the person’s possession. The petition shall be filed in camera, and shall remain under seal for at least 120 days, or until the state elects to intervene, whichever occurs first. Service of the petition shall not be made on the defendant until ordered by the court.

On behalf of the state, the attorney general may elect to intervene and proceed with the action, not later than 120 days after the date the attorney general received the petition and information. This deadline may be extended for good cause shown. During the time the petition remains under seal, the attorney general may elect to initiate discussions with the accused provider in an attempt to resolve the claim prior to the commencement of judicial proceedings.

The court and the attorney general may consent to a dismissal of an action at any time during which the petition remains under seal. If the state elects not to intervene, the action shall be dismissed, notwithstanding any objection by the person initiating the action.

No person other than the state may intervene or bring a related action based on the same underlying facts as an action brought under this section. If the state intervenes, it shall have the primary responsibility for investigating and prosecuting the action, and is not bound by any act of the person bringing the action. Such person shall have the right to continue as a party to the action, subject to limitations.

The state may limit the participation of the person who initiated the action if it finds that the person's participation would cause harassment, or would unduly delay investigation or prosecution of the action, or would be repetitious or irrelevant. Limitations may include, but are not limited to, limiting the number of witnesses, limiting length of testimony, and limiting cross-examination of witnesses.

Even if an action has been brought under this act, the state is free to pursue the claim through any alternate proceeding. The person bringing the initial action will have the same rights in an alternate proceeding as are provided by this act, and any final finding or conclusion in the alternate proceeding shall be conclusive on all parties to the initial action.

The person who initiated the action is entitled to twenty to thirty-five percent of the proceeds of any action brought under this section, unless the court finds that the action is based primarily on information not provided by the person initiating the action, in which case the court shall award the person no more than fifteen percent of the proceeds. If the court finds that the person bringing the action planned and initiated the violation on which the action is based, it may reduce the share of the proceeds to the extent it deems appropriate. However, any person convicted of a violation shall not be entitled to any share of the proceeds, and shall be dismissed from the action.

A person may not bring an action under this act that is based on allegations that are the subject of another civil suit or administrative penalty proceeding which has already commenced, and in which the state is a party.

A person may not bring an action under this act that is based on the public disclosure of allegations or transactions in a criminal or civil hearing, in a legislative or administrative report, hearing, audit, or investigation, or from the news media, unless the person bringing the action is the original source of such information.

The Attorney General shall establish guidelines for enforcing the provisions of this act, which shall be modeled upon the standards established by the U.S. Department of Justice, outlined in its "Guidance on the Use of the Civil False Claims Act in Civil Health Care Matters."

Venue for these actions shall be in Cole County. An action brought under this act shall not be brought more than five years after the date on which the violation was committed, but nothing within this act shall be deemed to alter the statutes of limitations for medical malpractice or wrongful death actions.

The act also contains "whistle-blower" protections, providing that a person who is discharged, demoted, suspended, threatened, harassed, or in any way discriminated against in terms of employment due to a lawful act taken by the person in furtherance of an action for Medicaid fraud shall be entitled to reinstatement with the same seniority status, not less than two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as the result of such discrimination. However, such protections shall not apply if the court finds that the employee brought a frivolous or clearly vexatious claim, planned, initiated, or participated in the conduct upon which the action is brought, or is convicted of criminal conduct arising from Medicaid fraud violations.

The act provides that the Attorney General's office and the Department of Social Services shall make a detailed report to the General Assembly and the Governor regarding implementation and administration of the provisions of this act, as provided therein. Additionally, a financial audit of the Medicaid fraud unit within the Attorney General's office and of the program integrity unit of the Department of Social Services shall be annually conducted by the state auditor, to quantitatively determine the amount of money invested in such units and the amount of money actually recovered by them.

The act also authorizes the Attorney General to commence state prosecution for alleged violations of Medicaid fraud, and gives the attorney general authority to apply for and obtain warrants to search, seize, or copy information relevant to investigations for fraud.

The act also provides that all Medicaid health care providers shall maintain adequate records regarding services provided, claims submitted, and payments requested, and shall maintain such records for at least five years after the date payment was received or for at least five years after the date on which the claim was submitted, if payment was not received. No person shall conceal or destroy such records before five years time, or he or she shall be guilty of a Class A misdemeanor.

ALEXA PEARSON