Note: These guidelines are effective March 15, 2013, and replace the guidelines effective on August 21, 2006, found at 71 FR 48552.
OIG Guidelines for Evaluating State False Claims Acts
Section 1909 of the Act sets forth four requirements a State law must meet to qualify for the 10-percentage-point decrease in the Federal medical assistance percentage with respect to any amounts recovered under a State action brought under the State law. After consulting with DOJ, OIG has developed guidelines to use in determining whether a State law meets the enumerated requirements. The guidelines are intended to highlight the FCA provisions relevant to OIG’s determination of whether a State law meets the requirements of section 1909 of the Act. OIG will closely review any variation from these provisions of the FCA in the State law.
A. Liability for False or Fraudulent Claims
Under section 1909(b)(1) of the Act, the State law must establish liability to the State for false or fraudulent claims described in 31 U.S.C. 3729, with respect to expenditures related to State Medicaid plans. When evaluating a State law to determine whether it meets the requirements of section 1909(b)(1) of the Act, OIG will consider whether the law provides for the following:
1. Liability to the State for false or fraudulent claims with respect to Medicaid program expenditures, including:
2. Definitions for the terms “knowing” and “knowingly” meaning that a person, with respect to information: (a) has actual knowledge of the information,
(b) acts in deliberate ignorance of the truth or falsity of the information, or
(c) acts in reckless disregard of the truth or falsity of the information. In addition, no specific intent to defraud should be required.
3.A definition for the term “claim” meaning, with respect to any Medicaid program expenditure, any request or demand, whether under contract or otherwise, for money or property and whether or not the State has title to the money or property, that
(a) is presented to an officer, employee, or agent of the State, or
(b) is made to a contractor, grantee, or other recipient if the money or property is to be spent or used on the State’s behalf or to advance a State program or interest and if the State (i) provides or has provided any portion of the money or property requested or demanded or (ii) will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded.
4. A definition of the term “obligation” meaning an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship; from a fee-based or similar relationship; from statute or regulation; or from the retention of any overpayment.
5. A definition of the term “material” meaning to have a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.
If a State law includes provisions that limit the application of the above-described liability provisions and definitions, OIG will consider whether, because of those limitations, the State law fails to fully establish liability to the State for the false or fraudulent claims described in 31 U.S.C. 3729.
least $5,500 to $11,000. If the civil penalties under the FCA are further adjusted by the Federal Civil Penalties Inflation Adjustment Act at a future date, then a State law must provide for civil penalties of at least those adjusted amounts to satisfy the requirements of section 1909(b)(4) of the Act.
Civil Penalty Provisions
Under section 1909(b)(4) of the Act, the State law must contain a civil penalty that is not less than the amount of the civil penalty authorized under 31 U.S.C. 3729. When determining whether a State law meets the requirements of section 1909(b)(4) of the Act, OIG will consider whether the law establishes liability for (1) at least treble damages and (2) civil penalties of at least $5,000 to $10,000 as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note; Pub. L. 104-410). As of the date of this Notice, the civil penalties under the FCA, as adjusted by the Federal Civil Penalties Inflation Adjustment Act, are $5,500 to $11,000. Therefore, a State law must provide for civil penalties of at least $5,500 to $11,000. If the civil penalties under the FCA are further adjusted by the Federal Civil Penalties Inflation Adjustment Act at a future date, then a State law must provide for civil penalties of at least those adjusted amounts to satisfy the requirements of section 1909(b)(4) of the Act.
OIG Guidelines for Evaluating State False Claims Acts
Section 1909 of the Act sets forth four requirements a State law must meet to qualify for the 10-percentage-point decrease in the Federal medical assistance percentage with respect to any amounts recovered under a State action brought under the State law. After consulting with DOJ, OIG has developed guidelines to use in determining whether a State law meets the enumerated requirements. The guidelines are intended to highlight the FCA provisions relevant to OIG’s determination of whether a State law meets the requirements of section 1909 of the Act. OIG will closely review any variation from these provisions of the FCA in the State law.
A. Liability for False or Fraudulent Claims
Under section 1909(b)(1) of the Act, the State law must establish liability to the State for false or fraudulent claims described in 31 U.S.C. 3729, with respect to expenditures related to State Medicaid plans. When evaluating a State law to determine whether it meets the requirements of section 1909(b)(1) of the Act, OIG will consider whether the law provides for the following:
1. Liability to the State for false or fraudulent claims with respect to Medicaid program expenditures, including:
- knowingly presenting, or causing to be presented, a false or fraudulent claim for payment or approval;
- knowingly making, using, or causing to be made or used, a false record or statement material to a false or fraudulent claim;
- knowingly making, using, or causing to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the State or knowingly concealing or knowingly and improperly avoiding or decreasing an obligation to pay or transmit money or property to the State; and conspiring to commit any of the violations described above.
2. Definitions for the terms “knowing” and “knowingly” meaning that a person, with respect to information: (a) has actual knowledge of the information,
(b) acts in deliberate ignorance of the truth or falsity of the information, or
(c) acts in reckless disregard of the truth or falsity of the information. In addition, no specific intent to defraud should be required.
3.A definition for the term “claim” meaning, with respect to any Medicaid program expenditure, any request or demand, whether under contract or otherwise, for money or property and whether or not the State has title to the money or property, that
(a) is presented to an officer, employee, or agent of the State, or
(b) is made to a contractor, grantee, or other recipient if the money or property is to be spent or used on the State’s behalf or to advance a State program or interest and if the State (i) provides or has provided any portion of the money or property requested or demanded or (ii) will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded.
4. A definition of the term “obligation” meaning an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship; from a fee-based or similar relationship; from statute or regulation; or from the retention of any overpayment.
5. A definition of the term “material” meaning to have a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.
If a State law includes provisions that limit the application of the above-described liability provisions and definitions, OIG will consider whether, because of those limitations, the State law fails to fully establish liability to the State for the false or fraudulent claims described in 31 U.S.C. 3729.
least $5,500 to $11,000. If the civil penalties under the FCA are further adjusted by the Federal Civil Penalties Inflation Adjustment Act at a future date, then a State law must provide for civil penalties of at least those adjusted amounts to satisfy the requirements of section 1909(b)(4) of the Act.
Civil Penalty Provisions
Under section 1909(b)(4) of the Act, the State law must contain a civil penalty that is not less than the amount of the civil penalty authorized under 31 U.S.C. 3729. When determining whether a State law meets the requirements of section 1909(b)(4) of the Act, OIG will consider whether the law establishes liability for (1) at least treble damages and (2) civil penalties of at least $5,000 to $10,000 as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note; Pub. L. 104-410). As of the date of this Notice, the civil penalties under the FCA, as adjusted by the Federal Civil Penalties Inflation Adjustment Act, are $5,500 to $11,000. Therefore, a State law must provide for civil penalties of at least $5,500 to $11,000. If the civil penalties under the FCA are further adjusted by the Federal Civil Penalties Inflation Adjustment Act at a future date, then a State law must provide for civil penalties of at least those adjusted amounts to satisfy the requirements of section 1909(b)(4) of the Act.
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