To enact sections 2747.01 to 2747.06 of the Revised Code to provide for the recovery of damages and civil penalties for defrauding the state of money, property, or services in relation to the Medicaid Program and to authorize private persons to bring qui tam civil actions to remedy the frauds.

Section 1. That sections 2747.01, 2747.02, 2747.03, 2747.04, 2747.05, and 2747.06 of the Revised Code be enacted to read as follows:

Sec. 2747.01. As used in sections 2747.01 to 2747.06 of the Revised Code:

(A) "Claim" means any request or demand for money, property, or services in context of the medicaid program.

(B) "Employer" includes any person.

(C) "Knowingly" means that a person, with respect to information:

(1) Has actual knowledge of the information;

(2) Acts in deliberate ignorance of the truth or falsity of the information; or

(3) Acts in reckless disregard of the truth or falsity of the information.

(D) "Person" includes any natural person, any partnership or corporation, any business trust, any business firm or entity, any organization or association, any estate, and any trust.

Sec. 2747.02. (A) Any person who commits any of the following acts in context of the medicaid program is liable to the state as provided in division (B) of this section:

(1) Knowingly presents or causes to be presented to any officer, employee, or agent of the state, or to any contractor, grantee, or other recipient of state funds, a false or fraudulent claim for payment or approval;

(2) Knowingly makes, uses, or causes to be made or used a false record or statement to get a false or fraudulent claim paid or approved;

(3) Has possession, custody, or control of public property or money used or to be used by the state and knowingly delivers or causes to be delivered less property or money than the amount for which the person receives a certificate or receipt;

(4) Is authorized to make or deliver a document certifying receipt of property used or to be used by the state and knowingly makes or delivers a receipt that falsely represents the property used or to be used;

(5) Knowingly buys, or receives as a pledge of an obligation or debt, public property from any person who is not lawfully authorized to sell or pledge the property;

(6) Knowingly makes, uses, or causes to be made or used a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the state;

(7) Is a beneficiary of an inadvertent submission of a false claim to any employee, officer, or agent of the state, or to any contractor, grantee, or other recipient of state funds, subsequently discovers the falsity of the claim, and fails to disclose the false claim to the state within a reasonable period of time after the discovery of the false claim; or

(8) Conspires with one or more others to violate any element of divisions (A)(1) to (7) of this section.

(B)(1) Except as otherwise provided in division (B)(2) of this section, a person who violates division (A) of this section is liable to the state for three times the amount of damages that the state sustains because of the violation, is liable to the state for a civil penalty of not less than five thousand nor more than ten thousand dollars for each violation, and is liable to the state for the costs of a civil action brought to recover any of those damages or civil penalties.

(2) A person who violates division (A) of this section is liable to the state for not less than two times the amount of damages that the state sustains because of the violation, and the costs of a civil action brought to recover the damages but no civil penalties, if the court finds all of the following:

(a) The person committing the violation provided the attorney general with all information known to the person about the violation within thirty days after the date on which the person first obtained the information;

(b) The person fully cooperated with any state investigation of the violation; and

(c) At the time the person provided the attorney general with information about the violation, no criminal prosecution, civil action, or administrative action had been commenced with respect to the violation, and the person did not have actual knowledge of the existence of an investigation into the violation.

(C) Proof of intent to defraud is not required in any case brought under this chapter.

Sec. 2747.03.  (A) The attorney general shall investigate violations of section 2747.02 of the Revised Code. If the attorney general finds that a person has violated or is violating division (A) of section 2747.02 of the Revised Code, the attorney general may bring a civil action under this section against the person.

(B)(1) Any person may bring a civil action for a violation of division (A) of section 2747.02 of the Revised Code for the person and for the state in the name of the state. The complaint shall be filed in camera, shall remain under seal for at least sixty days, and shall not be served on the defendant until the court so orders.

(2) A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the attorney general.

(3) The state, for good cause shown, may move the court for extensions of the time during which the complaint remains under seal. The motion may be supported by affidavits or other submissions in camera.

(4) The defendant shall not be required to respond to any complaint filed under this section until twenty-eight days after the complaint is unsealed and served upon the defendant pursuant to Civil Rule 4.

(5) Before the expiration of the sixty-day period under division (B)(2) of this section or any extensions obtained under division (B)(3) of this section, the state shall either proceed with the action or notify the court that it declines to proceed with the action. If the state proceeds with the action, the state shall conduct the action. If the state declines to proceed with the action, the person bringing the action shall have the right to conduct the action.

(6) When a person brings an action under division (B)(1) of this section, no person other than the state may intervene or bring a related action based on the facts underlying that pending action.

(C)(1) If the state proceeds with an action under division (B) of this section, it has the primary responsibility for prosecuting the action and is not bound by an action of the person bringing the action. The person bringing the action has the right to continue as a party to the action, subject to the limitations set forth in division (C)(2) of this section.

(2)(a) Whether or not the state intervenes in the action, the state may move to dismiss an action brought under division (B) of this section upon a showing of good cause notwithstanding the objections of the person bringing the action if the person has been notified by the state of the filing of the motion to dismiss and the court has provided the person with an opportunity to oppose the motion and to present evidence at a hearing.

(b) The state may settle an action brought under division (B) of this section with the defendant notwithstanding the objections of the person bringing the action if the court determines, after a hearing providing the person who brought the action an opportunity to present evidence, that the proposed settlement is fair, adequate, and reasonable under all the circumstances. Upon a showing of good cause, the court may hold the hearing in camera.

(c) Upon a showing by the state that unrestricted participation during the course of the litigation by the person bringing the action would interfere with or unduly delay the state's prosecution of the case or would be repetitious, irrelevant, or for purposes of harassment, the court, in its discretion, may impose limitations on the person's participation, such as:

(i) Limiting the number of witnesses the person may call;

(ii) Limiting the length of the testimony of the person's witnesses;

(iii) Limiting the person's cross-examination of witnesses;

(iv) Otherwise limiting the participation by the person in the litigation.

(d) Upon a showing by the defendant that unrestricted participation during the course of the litigation by the person bringing the action would be for purposes of harassment or would cause the defendant undue burden or unnecessary expense, the court may limit participation by the person bringing the action in the litigation.

(3) If the state elects not to proceed with an action brought by a person under division (B) of this section, the person has the right to conduct the action. If the state so requests, it shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts.

(4) When the person proceeds with the action, the court may permit the state to intervene at a later date upon a showing of good cause.

(5) Whether or not the state proceeds with the action, upon a showing by the state that certain discovery by the person bringing the action would interfere with the state's investigation or prosecution of a criminal or civil matter arising out of the same facts, the court may stay that discovery for a period of not more than sixty days. The showing shall be conducted in camera. The court may extend the sixty-day period upon a further showing in camera that the state has pursued the criminal or civil investigation or proceedings with reasonable diligence and any proposed discovery in the civil action will interfere with the ongoing criminal or civil investigation or proceedings.

(6) The state may elect to pursue its claim through any alternate remedy available to the state, including any administrative proceeding to determine a civil monetary penalty. If any such alternate remedy is pursued in another proceeding, the person bringing the action has the same rights in that proceeding as the person would have had if the action had continued under this section. Any finding of fact or conclusion of law made in the other proceeding that has become final shall be conclusive on all parties to an action under this section. A finding or conclusion is final if it has been finally determined on appeal to the appropriate court, if all time for filing an appeal with respect to the finding or conclusion has expired, or if the finding or conclusion is not subject to judicial review.

(D)(1) If the state proceeds with an action brought by a person under division (B) of this section, the person shall receive at least fifteen per cent but not more than twenty-five per cent of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action. If the action is one that the court finds to be based primarily on disclosures of specific information, other than information provided by the person bringing the action, relating to allegations or transactions specifically in a criminal, civil, or administrative hearing, in a legislative or administrative report, hearing, audit, or investigation, or from the news media, the court may award the sums that it considers appropriate, but in no case more than ten per cent of the proceeds, taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation. Any payment to a person under division (D)(1) of this section shall be made from the proceeds. The person shall also receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorney's fees and costs. All expenses, fees, and costs shall be awarded against the defendant.

(2) If the state does not proceed with an action brought by a person under division (B) of this section, the person bringing the action or settling the claim shall receive an amount that the court decides is reasonable for collecting the civil penalty and damages. The amount shall be not less than twenty-five per cent and not more than thirty per cent of the proceeds of the action or settlement and shall be paid out of the proceeds. The person shall also receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorney's fees and costs. All expenses, fees, and costs shall be awarded against the defendant.

(3) Whether or not the state proceeds with the action, if the court finds that the action was brought by a person who planned and initiated the violation of section 2747.02 of the Revised Code upon which the action was brought, then the court may, to the extent the court considers appropriate, reduce the share of the proceeds of the action that the person would otherwise receive under division (D)(1) or (2) of this section, taking into account the role of that person in advancing the case to litigation and any relevant circumstances pertaining to the violation. If the person bringing the action is convicted of criminal conduct arising from the person's role in the violation of section 2747.02 of the Revised Code, the person shall be dismissed from the civil action and shall not receive any share of the proceeds of the action. The dismissal shall not prejudice the right of the state to continue the action.

(4) If the state does not proceed with the action and the person bringing the action conducts the action, the court may award to the defendant its reasonable attorney's fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.

(E)(1) No person may bring an action under division (B) of this section against a member of the general assembly, a judge or other judicial officer, the governor, the lieutenant governor, the secretary of state, the treasurer of state, the auditor of state, or the attorney general if the action is based on evidence or information that is known to the state when the action is brought.

(2) No person may bring an action under division (B) of this section that is based upon allegations or transactions that are the subject of a civil suit or an administrative civil money penalty proceeding in which the state is already a party.

(3) Upon timely motion of the state, a court shall dismiss an action brought under division (B) of this section if the allegations relating to all essential elements of liability on the claim alleged in the action are based on the public disclosure of allegations in a state criminal, civil, or administrative hearing; in a state legislative or administrative report, hearing, audit, or investigation; or from the news media. A "public disclosure" includes only disclosures made on the public record or that otherwise have been disseminated to the general public. An action or claim is "based on" a public disclosure only if the person bringing the action derived the person's knowledge of all essential elements of liability on the claim alleged in the action from the public disclosure. The person bringing the action does not create a public disclosure by obtaining information pursuant to a federal or state public records request or from information exchanges with law enforcement and other state officers, employees, or agents if the information does not otherwise qualify as publicly disclosed.

(F) The state is not liable for expenses that a person incurs in bringing an action under this section.

(G) Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by the employee's employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole. The relief shall include reinstatement with the same seniority status the employee would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorney's fees. An employee may bring an action in the appropriate court of common pleas for the relief provided in this division.

Sec. 2747.04.  (A)(1) A civil action under division (A) or (B) of section 2747.03 of the Revised Code may not be brought after the date that is six years after the date on which the violation of section 2747.02 is committed or three years after the date when facts material to the right of action are known or reasonably should have been known by the attorney general but in no event more than ten years after the date on which the violation is committed, whichever occurs last.

(2) A civil action under division (G) of section 2747.03 of the Revised Code may not be brought more than three years after the last act of the employer that is alleged to violate that division.

(B) In any action brought under section 2747.03 of the Revised Code, the state or the person bringing the action shall prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.

(C) A final judgment rendered in favor of the state in any criminal proceeding charging fraud or false statements, whether upon a verdict after trial or upon a plea of guilty or nolo contendere, shall estop the defendant from denying the essential elements of the offense in any action that involves the same transaction as in the criminal proceeding and that is brought under division (A) or (B) of section 2747.03 of the Revised Code.

Sec. 2747.05.  (A) The remedies provided in section 2747.03 of the Revised Code are not exclusive, and are in addition to any other remedies provided for in any other statute or available under common law.

(B) An action under section 2747.03 of the Revised Code may be brought in the court of common pleas of Franklin county, in the court of common pleas of any county in which the defendant or any one of multiple defendants can be found, resides, or transacts business, or in the court of common pleas of any county in which any act prohibited by section 2747.02 of the Revised Code occurred.

Sec. 2747.06.  (A)(1) Whenever the attorney general has reason to believe that a person may be in possession, custody, or control of any documentary material or information relevant to an investigation conducted under section 2747.03 of the Revised Code, before commencing a civil action under that section, the attorney general may issue in writing and cause to be served upon the person a civil investigative demand requiring the person to do any of the following:

(a) Produce the documentary material for inspection and copying;

(b) Answer in writing written interrogatories with respect to the documentary material or information;

(c) Give oral testimony concerning the documentary material or information;

(d) Furnish any combination of the material, answers, or testimony.

(2)(a) Each civil investigative demand issued under division (A)(1) of this section shall state the nature of the conduct constituting the alleged violation of section 2747.02 of the Revised Code that is under investigation.

(b) If the demand is for the production of documentary material, the demand shall do both of the following:

(i) Describe each class of documentary material to be produced with such definiteness and certainty as to permit the material to be fairly identified;

(ii) Prescribe a return date for each class of documentary material that will provide a reasonable period of time within which the material may be assembled and made available for inspection and copying.

(c) If the demand is for answers to written interrogatories, the demand shall do both of the following:

(i) Set forth with specificity the written interrogatories to be answered;

(ii) Prescribe dates at which time answers to written interrogatories shall be submitted.

(d) If the demand is for the giving of oral testimony, the demand shall do all of the following:

(i) Prescribe a date, time, and place at which oral testimony shall be commenced;

(ii) Specify that the attendance and testimony are necessary to the conduct of the investigation;

(iii) Notify the person receiving the demand of the right to be accompanied by an attorney and any other representative;

(iv) Describe the general purpose for which the demand is being issued and the general nature of the testimony, including the primary areas of inquiry, that will be taken pursuant to the demand.

(e) The date prescribed for the commencement of oral testimony pursuant to a civil investigative demand issued under this section shall be a date that is not less than seven days after the date on which the demand is received, unless the attorney general determines that exceptional circumstances are present that warrant the commencement of the testimony within a lesser period of time.

(f) The attorney general shall not issue more than one civil investigative demand for oral testimony by the same person unless the person requests otherwise or unless the attorney general, after investigation, notifies the person in writing that an additional demand for oral testimony is necessary.

(B) A civil investigative demand issued under division (A) of this section may not require the production of any documentary material, the submission of any answers to written interrogatories, or the giving of any oral testimony if the material, answers, or testimony would be protected from disclosure under either of the following:

(1) The standards applicable to subpoenas or subpoenas duces tecum issued by a court to aid in a grand jury investigation;

(2) The standards applicable to discovery requests under the Rules of Civil Procedure, to the extent that the application of the standards to the demand is appropriate and consistent with the provisions and purposes of this section.

(C) Any civil investigative demand issued under division (A) of this section or petition filed under division (I) of this section may be served in the same manner as a summons under Civil Rules 4 to 4.3 and 4.5.

(D) A verified return by the individual serving a civil investigative demand issued under division (A) of this section or a petition filed under division (I) of this section setting forth the manner of the service shall be proof of the service. In the case of service by registered or certified mail, the return shall be accompanied by the return post office receipt of delivery of the demand.

(E)(1) The production of documentary material in response to a civil investigative demand served under this section shall be made under a sworn certificate, in any form that the demand designates, by the following methods:

(a) In the case of a natural person, the person to whom the demand is directed;

(b) In the case of a person other than a natural person, a person having knowledge of the facts and circumstances relating to the production and authorized to act on behalf of the person.

The certificate shall state that all of the documentary material required by the demand and in the possession, custody, or control of the person to whom the demand is directed has been produced and made available to the attorney general.

(2) Any person upon whom any civil investigative demand for the production of documentary material has been served under this section shall make the material available for inspection and copying to the attorney general at the principal place of business of the person or at any other place that the attorney general and the person after service of the demand may agree and prescribe in writing. The person shall make the material available on the return date specified in the demand, or on any later date that the attorney general may prescribe in writing. The person may, upon written agreement between the person and the attorney general, substitute copies for originals of all or any part of the material.

(F) Each interrogatory in a civil investigative demand served under this section shall be answered separately and fully in writing under oath and shall be submitted under a sworn certificate, in the form that the demand designates, by the following persons:

(1) In the case of a natural person, the person to whom the demand is directed;

(2) In the case of a person other than a natural person, the person or persons responsible for answering each interrogatory.

If any interrogatory is objected to, the reasons for the objection shall be stated in the certificate instead of an answer. The certificate shall state that all information required by the demand and in the possession, custody, control, or knowledge of the person to whom the demand is directed has been submitted. To the extent that any information is not furnished, the information shall be identified and reasons set forth with particularity regarding the reasons why the information was not furnished.

(G)(1) The examination of any person pursuant to a civil investigative demand for oral testimony served under this section shall be taken before an officer authorized by law to administer oaths and affirmations. The officer before whom the testimony is to be taken shall put the witness on oath or affirmation and shall, personally or by someone acting under the direction of the officer and in the officer's presence, record the testimony of the witness. The testimony shall be taken stenographically and shall be transcribed. When the testimony is fully transcribed, the officer before whom the testimony is taken shall promptly transmit a copy of the transcript of the testimony to the attorney general. Division (G)(1) of this section shall not preclude the taking of testimony by any means authorized by, and in a manner consistent with, the Rules of Civil Procedure.

(2) The attorney general shall exclude from the place where the examination is held all persons except the person giving the testimony, the attorney for and any other representative of the person giving the testimony, any person who may be agreed upon by the attorney general and the person giving the testimony, the officer before whom the testimony is to be taken, and any stenographer taking the testimony.

(3) The oral testimony of any person taken pursuant to a civil investigative demand served under this section shall be taken in Franklin county or in the county within which the person resides, is found, or transacts business, or in any other place that may be agreed upon by the attorney general and the person.

(4) When the testimony is fully transcribed, the attorney general or the officer before whom the testimony is taken shall afford the witness, who may be accompanied by counsel, a reasonable opportunity to examine and read the transcript, unless examination and reading are waived by the witness. Any changes in form or substance that the witness desires to make shall be entered and identified upon the transcript by the officer or the attorney general, with a statement of the reasons given by the witness for making the changes. The transcript shall then be signed by the witness, unless the witness waives the signing in writing, is ill, cannot be found, or refuses to sign. If the transcript is not signed by the witness within thirty days after being afforded a reasonable opportunity to examine it, the officer or the attorney general shall sign it and state on the record the fact of the waiver, illness, absence of the witness, or the refusal to sign, together with the reasons, if any, given therefor.

(5) The officer before whom the testimony is taken shall certify on the transcript that the witness was sworn by the officer and that the transcript is a true record of the testimony given by the witness, and the officer or attorney general shall take custody of the transcript.

(6)(a) Any person compelled to appear for oral testimony under a civil investigative demand issued under division (A) of this section may be accompanied, represented, and advised by counsel. Counsel may advise the person, in confidence, with respect to any question asked of the person. The person or counsel may object on the record to any question, in whole or in part, and shall briefly state for the record the reason for the objection. An objection may be made, received, and entered upon the record when it is claimed that the person is entitled to refuse to answer the question on the grounds of any constitutional or other legal right or privilege, including the privilege against self-incrimination. The person may not otherwise object to or refuse to answer any question, and may not directly or through counsel otherwise interrupt the oral examination. If the person refuses to answer any question, a petition may be filed in the court of common pleas in Franklin county or in the county in which the examination takes place for an order compelling the person to answer the question.

(b) If the person refuses to answer any question on the grounds of the privilege against self-incrimination, the testimony of the person may be compelled in the manner provided in section 2945.44 of the Revised Code.

(7) Any person appearing for oral testimony under a civil investigative demand issued under division (A) of this section shall be entitled to the same fees and allowances that are paid to witnesses in the court of common pleas.

(H)(1)(a) Except as otherwise provided in division (H) of this section, no documentary material, answers to interrogatories, or transcripts of oral testimony received under this section, or copies of documentary material, answers to interrogatories, or transcripts of oral testimony so received, while in the possession of the attorney general, shall be available for examination by any individual other than an employee of the attorney general. This prohibition on the availability of material, answers, or transcripts shall not apply if consent is given by the person who produced the material, answers, or transcripts. Nothing in division (H)(1)(a) of this section is intended to prevent disclosure to the general assembly, including any committee or subcommittee of the general assembly, to any other state agency for use by the agency in furtherance of its statutory responsibilities, or to any law enforcement officer for use in the furtherance of the law enforcement officer's duties. Disclosure of information to any agency other than those specified in this division shall be allowed only upon application, made by the attorney general to a court of common pleas showing substantial need for the use of the information by the agency in furtherance of its statutory responsibilities.

(b) While in the possession of the attorney general and under any reasonable terms and conditions that the attorney general prescribes, documentary material and answers to interrogatories received under this section shall be available for examination by the person who produced the material or answers, or by a representative of that person authorized by that person to examine the material and answers.

(2) The attorney general may use any documentary material, answers to interrogatories, or transcripts of oral testimony received under this section in connection with any case or proceeding before a court, grand jury, or state agency.

(3) If any documentary material has been produced by any person in the course of any investigation pursuant to a civil investigative demand under this section, the attorney general shall, upon written request of the person who produced the material, return to the person the documentary material, other than copies furnished to the attorney general under division (E)(2) of this section or made for the attorney general under division (H)(1)(b) of this section, that has not passed into the control of any court, grand jury, or agency through introduction into the record of the case or proceeding, or into the control of any law enforcement officer, if either of the following applies:

(a) Any case or proceeding before the court or grand jury arising out of the investigation, or any proceeding before any state agency involving the material, has been completed.

(b) No case or proceeding in which the material may be used has been commenced within a reasonable time after completion of the examination and analysis of all documentary material and other information assembled in the course of the investigation.

(I) Whenever any person fails to comply with any civil investigative demand issued under division (A) of this section, or whenever satisfactory copying or reproduction of any material requested in the demand cannot be done and the person refuses to surrender the material, the attorney general may file in the court of common pleas in Franklin county or in the county in which the person resides, is found, or transacts business, and serve upon the person, a petition for an order of the court for the enforcement of the civil investigative demand.

(J) Documentary material, answers to written interrogatories, and oral testimony provided under a civil investigative demand issued under division (A) of this section are not public records, and are exempt from disclosure under section 149.43 of the Revised Code.

(K) As used in this section, "documentary material" includes the original or any copy of any book, record, report, memorandum, paper, communication, tabulation, chart, or other document, or data compilations stored in or accessible through computer or other information retrieval systems, together with instructions and all other materials necessary to use or interpret the data compilations, and any product of discovery.

Section 2. An action may be commenced under section 2747.03 of the Revised Code to remedy a violation that occurred before the effective date of this section unless the limitations period fixed in division (A) of section 2747.04 of the Revised Code has elapsed.