State False Claims Act Reviews
The Office of Inspector General (OIG), in consultation with the Attorney General, determines whether States have false claims acts that qualify for an incentive under section 1909 of the Social Security Act. Those States deemed to have qualifying laws receive a 10-percentage-point increase in their share of any amounts recovered under such laws.
To qualify for the financial incentive, a State's false claims act must:
- establish liability to the State for false or fraudulent claims, as described in the Federal False Claims Act (FCA), with respect to Medicaid spending;
- contain provisions that are at least as effective in rewarding and facilitating qui tam actions for false or fraudulent claims as those described in the FCA;
- contain a requirement for filing an action under seal for 60 days with review by the State Attorney General; and
- contain a civil penalty that is not less than the amount of the civil penalty authorized under the FCA.
Since the effective date of section 1909 of the Social Security Act, the FCA has been amended by the Fraud Enforcement and Recovery Act of 2009 (FERA), the Patient Protection and Affordable Care Act (ACA), and the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act). These three acts, among other things, amended bases for liability in the FCA and expanded certain rights of qui tam relators. In addition, effective August 1, 2016, the civil penalties authorized under the FCA increased pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. Going forward, the civil penalties authorized under the FCA will increase incrementally annually on August 1st.
As a result of the increase in civil penalties authorized under the FCA, OIG will (1) analyze all previously reviewed State acts to determine if they remain compliant with section 1909 and (2) provide a 2-year grace period during which State acts that were previously approved by OIG will continue to be deemed compliant pending State act amendment and resubmission to OIG. All State acts that have not yet been approved will be reviewed in reference to the FCA as amended, including the increased civil penalties.
OIG will issue letters to all States that have been formally reviewed (whether approved or rejected) for the incentive. For States that were previously approved, the letter will explain whether the State needs to amend its act to remain in compliance with the DRA, and when the 2-year grace period will begin. For States that were previously rejected, the letter will explain whether the reviewed language in their act would need to be amended in order to be in compliance with the DRA, in addition to any issues raised in OIG's previous rejection letter(s).
To request a review of a false claims act, States should submit a complete copy of the law and any other relevant information to:
Office of Inspector General
Office of Counsel to the Inspector General
U.S. Department of Health and Human Services
Cohen Building, Mail Stop 5527
330 Independence Avenue, SW
Washington, DC 20201
OIG also invites States with draft legislation to submit their drafts for informal review and discussion before the draft legislation is passed.