Section 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 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 of generally accepted medical practice in  a  substantial  number  of
  cases or grossly and flagrantly violated such standards and 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:
    (i) 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;
    (ii) the care, services or supplies were not provided as claimed;
    (iii) the person who ordered or prescribed care, services or  supplies
  which was 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
    (iv) the services or supplies for which payment was received were not,
  in fact, provided.
    (b)  For each claim, the department of health is authorized to recover
  any  overpayment,  unauthorized  payment,  or  otherwise   inappropriate
  payment  and  if  twenty-five percent or more of those claims which were
  the  subject  of  an  audit  by  the  department  of  health  result  in
  overpayments,  unauthorized payments or otherwise inappropriate payments
  and for which the claims were submitted by a person  for  payment  under
  the  medical  assistance  program,  the  department  may  also  impose a
  monetary penalty against  any  person,  or  persons,  who  received  the
  overpayment,  unauthorized  payment,  or otherwise inappropriate payment
  for such claim. If less than twenty-five percent  of  identified  claims
  result in overpayments, unauthorized payments or otherwise inappropriate
  payments  then  the  department of health may recover such monies or may
  impose a monetary penalty, but not both. In addition, the department  of
  health  is  also  authorized  to  recover  any overpayment, unauthorized
  payment, or  otherwise  inappropriate  payment  and  impose  a  monetary
  penalty  against  any  person,  or persons, other than a recipient of an
  item or service under the medical assistance  program,  who  caused  the
  overpayment, unauthorized payment, or otherwise inappropriate payment to
  be received by the other person or persons. All of the foregoing actions
  may  be  taken  by  the  department  of  health  for  the same claim. In
  determining the amount of  any  monetary  penalty  to  be  imposed,  the
  department of health must 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. However,
  in  no  event  can  the  department  of  health  recover   overpayments,

  unauthorized  payments,  or  otherwise  inappropriate  payments from any
  person, or persons, for a single claim, in an amount  that  exceeds  the
  amount  paid  for  such  claim.  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.
    (c)  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.
    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.