| H1251B1370A01336 JKL:EAZ 04/07/11 #90 A01336 |
| |
| |
| |
| |
| AMENDMENTS TO HOUSE BILL NO. 1251 |
| |
| Printer's No. 1370 |
| |
1 | Amend Bill, page 1, line 3, by striking out "and" |
2 | Amend Bill, page 1, line 5, by inserting after "fraud" |
3 | ; and providing for liability for false claims, for treble |
4 | damages, costs and civil penalties, for powers of the Attorney |
5 | General and for qui tam actions |
6 | Amend Bill, page 2, by inserting between lines 5 and 6 |
7 | Section 2. Article IV of the act is amended by adding a |
8 | subarticle to read: |
9 | ARTICLE IV |
10 | PUBLIC ASSISTANCE |
11 | * * * |
12 | (f.1) Medical Assistance False Claims |
13 | Section 450.1. Definitions. |
14 | The following words and phrases when used in this subarticle |
15 | shall have the meanings given to them in this section unless the |
16 | context clearly indicates otherwise: |
17 | "Claim." As follows: |
18 | (1) A request or demand for money or property, whether |
19 | under contract or otherwise and regardless of whether the |
20 | Commonwealth has title to the money or property, which meets |
21 | any of the following: |
22 | (i) Is presented to an employee, officer or agent of |
23 | the Commonwealth. |
24 | (ii) Was made to a contractor, grantee or other |
25 | recipient and any portion of the money or property came |
26 | from or was provided using Commonwealth funds or the |
27 | money or property will be spent or used on the |
28 | Commonwealth's behalf or to advance a program or |
29 | interest. |
30 | (2) The term does not include requests or demands for |
31 | money or property the Commonwealth has paid to an individual |
32 | as compensation for employment or as an income subsidy with |
33 | no restrictions on the individual's use of the money or |
34 | property. |
35 | (3) To the extent it is not connected to a request or |
36 | demand for money or property, a filing with a Commonwealth |
|
1 | agency pursuant to the Commonwealth's insurance laws shall |
2 | not constitute a claim. |
3 | (4) The term shall apply only to claims made under the |
4 | medical assistance program. |
5 | "Knowingly." Whenever a person, with respect to information, |
6 | does any of the following: |
7 | (1) Has actual knowledge of the information. |
8 | (2) Acts in deliberate ignorance of the truth or falsity |
9 | of the information. |
10 | (3) Acts in reckless disregard of the truth or falsity |
11 | of the information. Proof of specific intent to defraud is |
12 | not required. |
13 | "Material." A natural tendency to influence, or be capable |
14 | of influencing, the payment or receipt of money or property. |
15 | "Medical assistance program." The program established by |
16 | Subarticle (f). |
17 | "Obligation." An established duty, whether or not fixed, |
18 | arising from any of the following: |
19 | (1) An express or implied contract. |
20 | (2) A grantor-grantee relationship. |
21 | (3) A licensor-licensee relationship. |
22 | (4) A fee-based or similar relationship. |
23 | (5) A statute or regulation. |
24 | (6) The retention of an overpayment. |
25 | "Official use." Any use that is consistent with the law and |
26 | the regulations and policies of the Office of Attorney General |
27 | including the following: |
28 | (1) Use in connection with internal memoranda and |
29 | reports. |
30 | (2) Communications between the Office of Attorney |
31 | General and a Federal, State or local government agency or a |
32 | contractor of a Federal, State or local government agency, |
33 | undertaken in furtherance of an investigation or prosecution |
34 | of an action. |
35 | (3) Interviews of a qui tam plaintiff or other witness. |
36 | (4) Oral examinations. |
37 | (5) Depositions. |
38 | (6) Preparation for and response to civil discovery |
39 | requests. |
40 | (7) Introduction into the record of an action or |
41 | proceeding. |
42 | (8) Applications, motions, memoranda and briefs |
43 | submitted to a court or other tribunal. |
44 | (9) Communications with investigators, auditors, |
45 | consultants and experts, the counsel of other parties, |
46 | arbitrators and mediators concerning an investigation, action |
47 | or proceeding. |
48 | "Person." A natural person, corporation, firm, association, |
49 | organization, partnership, business or trust. |
50 | "Qui tam plaintiff." A person bringing a civil action under |
51 | section 450.2. |
|
1 | Section 450.2. Acts subjecting persons to liability for treble |
2 | damages, costs and civil penalties; exceptions. |
3 | (a) Liability.--A person who commits acts prohibited in |
4 | subsection (b) shall be liable to the Commonwealth for three |
5 | times the amount of damages which the Commonwealth sustains |
6 | because of the act of that person. |
7 | (b) Prohibited acts.--A person who commits any of the |
8 | following acts with respect to the medical assistance program |
9 | shall be liable to the Commonwealth for the costs of a civil |
10 | action brought to recover any of those penalties or damages and |
11 | shall be liable to the Commonwealth for a civil penalty of not |
12 | less than $5,000 nor more than $10,000 for each violation: |
13 | (1) Conspires to defraud the Commonwealth by getting a |
14 | false or fraudulent claim allowed or paid or conspires to |
15 | defraud the Commonwealth by knowingly making, using or |
16 | causing to be made or used a false record or statement to |
17 | conceal, avoid or decrease an obligation to pay or transmit |
18 | money or property to the Commonwealth with respect to the |
19 | medical assistance program. |
20 | (2) Has possession, custody or control of public |
21 | property or money used or to be used by the Commonwealth with |
22 | respect to the medical assistance program and knowingly |
23 | delivers or causes to be delivered less property than the |
24 | amount for which the person receives a certificate or |
25 | receipt. |
26 | (3) Is authorized to make or deliver a document |
27 | certifying receipt of property used or to be used by the |
28 | Commonwealth with respect to the medical assistance program |
29 | and, intending to defraud the Commonwealth, makes or delivers |
30 | the receipt without completely knowing that the information |
31 | on the receipt is true. |
32 | (4) Knowingly makes, uses or causes to be made or used a |
33 | false record or statement to conceal, avoid or decrease an |
34 | obligation to pay or transmit money or property to the |
35 | Commonwealth with respect to the medical assistance program. |
36 | (5) Is a beneficiary of an inadvertent submission of a |
37 | false or fraudulent claim to any employee, officer or agent |
38 | of the Commonwealth or to any contractor, grantee or other |
39 | recipient of funds under the medical assistance program, |
40 | subsequently discovers the falsity of the claim and fails to |
41 | disclose the claim to the Commonwealth within a reasonable |
42 | time after discovery of the claim. |
43 | (6) Having a duty to make disclosure of a fact, event or |
44 | occurrence, knowingly fails to disclose such fact, event or |
45 | occurrence in order to conceal, avoid or decrease an |
46 | obligation to pay or transmit money or property to the |
47 | Commonwealth with respect to the medical assistance program. |
48 | (c) Damages limitation.-- Notwithstanding subsection (a), |
49 | the court may assess not less than two times the amount of |
50 | damages which the Commonwealth sustains because of the act of |
51 | the person described in that subsection and no civil penalty if |
|
1 | the court finds all of the following: |
2 | (1) The person committing the violation furnished the |
3 | Commonwealth officials who are responsible for investigating |
4 | false claims violations with all information known to that |
5 | person about the violation within 30 days after the date on |
6 | which the person first obtained the information. |
7 | (2) The person fully cooperated with any investigation |
8 | by the Commonwealth. |
9 | (3) At the time the person furnished the Commonwealth |
10 | with information about the violation, no criminal |
11 | prosecution, civil action or administrative action had |
12 | commenced with respect to the violation, and the person did |
13 | not have actual knowledge of the existence of an |
14 | investigation into the violation. |
15 | (d) Exclusion.--This section does not apply to claims, |
16 | records or statements made under the act of March 4, 1971 |
17 | (P.L.6, No.2), known as the Tax Reform Code of 1971. |
18 | (e) Actions to recover damages and adjustment of |
19 | penalties.--A person who is liable for the damages or penalties |
20 | assessed under subsections (a) and (b) shall also be liable to |
21 | the Commonwealth for the costs of a civil action brought to |
22 | recover any of those damages or penalties. The civil penalties |
23 | payable under subsection (b) shall be adjusted from time to time |
24 | as provided in the Federal Civil Penalties Inflation Adjustment |
25 | Act of 1990 (Public Law 104-410, 28 U.S.C. § 2461). |
26 | Section 450.3. Attorney General investigations and |
27 | prosecutions; powers of prosecuting authority; civil |
28 | actions by individuals as qui tam plaintiff and as |
29 | private citizen; jurisdiction of courts. |
30 | (a) Responsibilities of the Attorney General.--The Attorney |
31 | General shall diligently investigate a violation of section |
32 | 450.2. If the Attorney General finds that a person has violated |
33 | or is violating section 450.2, the Attorney General may bring a |
34 | civil action under this section against that person. |
35 | (b) Actions by private persons.-- |
36 | (1) A person may bring a civil action for a violation of |
37 | this subarticle for the person and for the Commonwealth in |
38 | the name of the Commonwealth. The person bringing the action |
39 | shall be referred to as the qui tam plaintiff. Once filed, |
40 | the action shall be dismissed only with the written consent |
41 | of the court, taking into account the best interest of the |
42 | parties involved and the policy of this subarticle. |
43 | (2) A copy of the complaint and written disclosure of |
44 | substantially all material evidence and information the qui |
45 | tam plaintiff possesses shall be served on the Attorney |
46 | General. The complaint shall be filed in camera and shall |
47 | remain under seal for at least 60 days and shall not be |
48 | served on the defendant until the court orders the service. |
49 | The Commonwealth may elect to intervene and proceed with the |
50 | action within 60 days after it receives the complaint and the |
51 | material evidence and information. |
|
1 | (3) The Commonwealth may, for good cause shown, move the |
2 | court for extensions of the time during which the complaint |
3 | remains under seal under paragraph (2). The motions may be |
4 | supported by affidavits or other submissions in camera. The |
5 | defendant shall not be required to respond to any complaint |
6 | filed under this section until the complaint is unsealed and |
7 | served upon the defendant under the Pennsylvania Rules of |
8 | Civil Procedure. |
9 | (4) Before the expiration of the 60-day period or any |
10 | extensions obtained under paragraph (3), the Commonwealth |
11 | shall: |
12 | (i) proceed with the action, in which case the |
13 | action shall be conducted by the Commonwealth; or |
14 | (ii) notify the court it declines to take over the |
15 | action, in which case the person bringing the action |
16 | shall have the right to conduct the action. |
17 | (5) (i) If a municipality is named as a coplaintiff |
18 | with the Commonwealth in an action brought under this |
19 | subsection, the qui tam plaintiff or the Commonwealth |
20 | may, notwithstanding a seal on the action ordered by the |
21 | court, serve the complaint, other pleadings and written |
22 | disclosure of substantially all material evidence and |
23 | information possessed by the qui tam plaintiff on the |
24 | appropriate local law enforcement authorities. |
25 | (ii) If information about an action is shared with |
26 | local law enforcement under subparagraph (i), the seal on |
27 | the action ordered by the court shall apply to the |
28 | subject municipality and local law enforcement |
29 | authorities to the same extent as the seal applied to |
30 | other parties in the action. |
31 | (c) Intervention.--When a person brings a valid action under |
32 | this subsection, no person other than the Commonwealth may |
33 | intervene or bring a related action based on the facts |
34 | underlying the pending action. |
35 | (d) Rights of the parties to qui tam actions.-- |
36 | (1) If the Commonwealth proceeds with the action, it |
37 | shall have the primary responsibility for prosecuting the |
38 | action and shall not be bound by an act of the person |
39 | bringing the action. The qui tam plaintiff shall have the |
40 | right to continue as a party to the action, subject to the |
41 | limitations set forth in paragraph (2). |
42 | (2) (i) The Commonwealth may move to dismiss the action |
43 | for good cause despite the objections of the qui tam |
44 | plaintiff if the qui tam plaintiff has been notified by |
45 | the Commonwealth of the filing of the motion and the |
46 | court has provided the qui tam plaintiff with an |
47 | opportunity to oppose the motion and present evidence at |
48 | a hearing. |
49 | (ii) The Commonwealth may settle the action with the |
50 | defendant despite the objections of the qui tam plaintiff |
51 | if the court determines, after a hearing providing the |
|
1 | qui tam plaintiff an opportunity to present evidence, the |
2 | proposed settlement is fair, adequate and reasonable |
3 | under the circumstances. |
4 | (iii) Upon a showing by the Commonwealth that |
5 | unrestricted participation during the course of the |
6 | litigation by the qui tam plaintiff would interfere with |
7 | or unduly delay the Commonwealth's prosecution of the |
8 | case or would be repetitious, irrelevant or harassment, |
9 | the court may, in its discretion, impose limitations on |
10 | the qui tam plaintiff's participation by: |
11 | (A) limiting the number of witnesses the person |
12 | may call; |
13 | (B) limiting the length of the testimony of the |
14 | witnesses; |
15 | (C) limiting the qui tam plaintiff's cross- |
16 | examination of witnesses; or |
17 | (D) otherwise limiting the participation by the |
18 | person in the litigation. |
19 | (iv) Upon a showing by the defendant that |
20 | unrestricted participation during the litigation by the |
21 | qui tam plaintiff initiating the action would be for |
22 | purposes of harassment or would cause the defendant undue |
23 | burden or unnecessary expense, the court may limit the |
24 | participation by the qui tam plaintiff in the litigation. |
25 | (3) If the Commonwealth elects not to proceed with the |
26 | action, the qui tam plaintiff shall have the right to conduct |
27 | the action. If the Commonwealth requests, it shall be served |
28 | with copies of all pleadings filed in the action and shall be |
29 | supplied with copies of all deposition transcripts at the |
30 | Commonwealth's expense. When a person proceeds with the |
31 | action, the court, without limiting the status and rights of |
32 | the qui tam plaintiff, may permit the Commonwealth to |
33 | intervene at a later date upon a showing of good cause. |
34 | (4) Whether or not the Commonwealth proceeds with the |
35 | action, upon a showing by the Commonwealth that certain |
36 | actions of discovery by the qui tam plaintiff would interfere |
37 | with the Commonwealth's investigation or prosecution of a |
38 | criminal or civil matter arising out of the same facts, the |
39 | court may stay the discovery for a period of not more than 60 |
40 | days. The showing shall be conducted in camera. The court may |
41 | extend the 60-day period upon a further showing in camera |
42 | that the Commonwealth has pursued the criminal or civil |
43 | investigation or proceedings with reasonable diligence and |
44 | the discovery proposed in the civil action will interfere |
45 | with the ongoing criminal or civil investigations or |
46 | proceedings. |
47 | (5) Notwithstanding subsection (b), the Commonwealth may |
48 | elect to pursue its claim through an alternate remedy |
49 | available to the Commonwealth, including an administrative |
50 | proceeding to determine a civil money penalty. If the |
51 | alternate remedy is pursued in another proceeding, the qui |
|
1 | tam plaintiff shall have the same rights in the proceeding as |
2 | if the action continued under this section. A finding of fact |
3 | or conclusion of law made in the other proceeding that has |
4 | become final shall be conclusive on all parties to an action |
5 | under this section. A finding or conclusion is final if it |
6 | has been finally determined on appeal to the appropriate |
7 | court of the Commonwealth, if the time for filing the appeal |
8 | regarding the finding or conclusion has expired or if the |
9 | finding or conclusion is not subject to judicial review. |
10 | (e) Award to qui tam plaintiff.-- |
11 | (1) If the Commonwealth proceeds with an action brought |
12 | by a qui tam plaintiff, the qui tam plaintiff shall, subject |
13 | to the provisions of this paragraph, receive at least 15% but |
14 | not more than 25% of the proceeds of the action or settlement |
15 | of the claim, including damages, civil penalties, payments |
16 | for costs of compliance and any other economic benefit |
17 | realized by the Commonwealth as a result of the action, |
18 | depending upon the extent to which either or both the person |
19 | and his counsel substantially contributed to the prosecution |
20 | of the action. Where the court finds the action is based |
21 | primarily on disclosures of specific information, other than |
22 | information provided by the qui tam plaintiff, relating to |
23 | allegations or transactions specifically in a criminal, civil |
24 | or administrative hearing or in a legislative or |
25 | administrative report, hearing, audit or investigation or |
26 | from the news media, the court may award the sums as it |
27 | considers appropriate, but in no case more than 10% of the |
28 | proceeds, taking into account the significance of the |
29 | information and the role of the person bringing the action in |
30 | advancing the case to litigation. A payment to a person under |
31 | the first or second sentence of this paragraph shall be made |
32 | from the proceeds. The person shall also receive an amount |
33 | for reasonable expenses which the appropriate judge finds was |
34 | necessarily incurred, plus reasonable attorney fees and |
35 | costs. The expenses, fees and costs shall be awarded against |
36 | the defendant. |
37 | (2) If the Commonwealth does not proceed with an action |
38 | under this section, the qui tam plaintiff shall receive an |
39 | amount which the court decides is reasonable for collecting |
40 | the civil penalty and damages. The amount shall not be less |
41 | than 25% and not more than 30% of the proceeds of the action |
42 | or settlement and shall be paid out of the proceeds, which |
43 | includes damages, civil penalties, payments for costs of |
44 | compliance and any other economic benefit realized by the |
45 | Commonwealth as a result of the action. The person shall also |
46 | receive an amount for reasonable expenses which the |
47 | appropriate Commonwealth court judge finds to have been |
48 | necessarily incurred, plus reasonable attorney fees and |
49 | costs. All the expenses, fees and costs shall be awarded |
50 | against the defendant. |
51 | (3) Whether or not the Commonwealth proceeds with the |
|
1 | action, if the court finds the action was filed by a person |
2 | who planned and initiated the violation of section 450.2(a) |
3 | upon which the action was filed, then the court may, to the |
4 | extent the court considers appropriate, reduce the share of |
5 | the proceeds of the action which the person would otherwise |
6 | receive under paragraph (1) or (2), taking into account the |
7 | role of that person in advancing the case to litigation and |
8 | any relevant circumstances pertaining to the violation. If |
9 | the person bringing the action is convicted of criminal |
10 | conduct arising from his or her role in the violation of |
11 | section 450.2(a), that person shall be dismissed from the |
12 | civil action and shall not receive a share of the proceeds of |
13 | the action. The dismissal shall not prejudice the right of |
14 | the Commonwealth to continue the action. |
15 | (4) If the Commonwealth does not proceed with the action |
16 | and the person bringing the action conducts the action, the |
17 | court may award to the defendant its reasonable attorney fees |
18 | and expenses if the defendant prevails in the action and the |
19 | court finds the claim of the person bringing the action was |
20 | clearly frivolous, clearly vexatious or brought primarily for |
21 | purposes of harassment. |
22 | (f) Certain actions barred.-- |
23 | (1) No court shall have jurisdiction over an action |
24 | brought under subsection (b) against a member of the |
25 | legislative branch, a member of the judiciary or a senior |
26 | executive branch official if the action is based on evidence |
27 | or information known to the Commonwealth when the action was |
28 | brought. |
29 | (2) In no event may a person bring an action under |
30 | subsection (b) which is based upon allegations or |
31 | transactions which are the subject of a civil suit or an |
32 | administrative civil penalty proceeding for money in which |
33 | the Commonwealth is already a party. |
34 | (3) Upon the motion of the Attorney General, the court |
35 | may, in consideration of all the equities, dismiss a relator |
36 | of the elements of the actionable false claims alleged in the |
37 | qui tam complaint which have been publicly disclosed, |
38 | specifically in the news media or in a publicly disseminated |
39 | governmental report, at the time the complaint is filed. |
40 | (g) Commonwealth not liable for certain expenses.--The |
41 | Commonwealth is not liable for expenses which a person incurs in |
42 | bringing an action under this section. |
43 | (h) Private action for retaliation action.--An employee, |
44 | contractor or agent who is discharged, demoted, suspended, |
45 | threatened, harassed or in any other manner discriminated |
46 | against in the terms and conditions of employment, contract or |
47 | agency because of lawful acts by the employee, contractor or |
48 | agent on behalf of the employee, contractor or agent or |
49 | associated others in furtherance of an action under this section |
50 | or efforts to stop one or more violations of this subarticle, |
51 | including investigation for, initiation of, testimony for or |
|
1 | assistance in an action filed or to be filed under this section, |
2 | shall be entitled to all relief necessary to make the employee, |
3 | contractor or agent whole. The relief shall include |
4 | reinstatement with the same seniority status the employee, |
5 | contractor or agent would have had but for the discrimination, |
6 | two times the amount of back pay, interest on the back pay and |
7 | compensation for any special damages sustained as a result of |
8 | the discrimination, including litigation costs and reasonable |
9 | attorney fees. Commonwealth Court shall have exclusive |
10 | jurisdiction for all actions seeking relief under this |
11 | subsection. |
12 | (i) Civil investigative demand.-- |
13 | (1) (i) The Attorney General shall have the authority |
14 | to issue civil investigative demands under paragraph (2). |
15 | (ii) Nothing in this subsection shall be construed |
16 | to limit the regulatory or investigative authority of any |
17 | department or agency of the Commonwealth whose functions |
18 | may relate to persons, enterprises or matters falling |
19 | within the scope of this chapter. |
20 | (2) (i) Whenever the Attorney General has reason to |
21 | believe that any person or enterprise may be in |
22 | possession, custody or control of documentary material |
23 | relevant to an investigation under this subarticle, the |
24 | Attorney General may issue in writing, and cause to be |
25 | served upon the person or enterprise, a civil |
26 | investigative demand requiring the production of the |
27 | material for examination. |
28 | (ii) Each demand shall: |
29 | (A) state the nature of the conduct constituting |
30 | the alleged violation which is under investigation, |
31 | the applicable provision of law and the connection |
32 | between the documentary material demanded and the |
33 | conduct under investigation; |
34 | (B) describe the class or classes of documentary |
35 | material to be produced with sufficient definiteness |
36 | and certainty to permit the material to be fairly |
37 | identified; |
38 | (C) state the demand is returnable or prescribe |
39 | a return date which will provide a reasonable time |
40 | period within which the material demanded may be |
41 | assembled and made available for inspection and |
42 | copying or reproduction; |
43 | (D) identify an investigator to whom the |
44 | material shall be made available; and |
45 | (E) contain the following statement printed |
46 | conspicuously at the top of the demand: |
47 | "You have the right to seek the assistance of an |
48 | attorney and he may represent you in all phases of |
49 | the investigation of which this civil investigative |
50 | demand is a part." |
51 | (iii) The demand shall not: |
|
1 | (A) contain a requirement which would be held to |
2 | be unreasonable if contained in a subpoena duces |
3 | tecum issued by any court in connection with a grand |
4 | jury investigation of such alleged violation; or |
5 | (B) require the production of documentary |
6 | evidence which would be privileged from disclosure if |
7 | demanded by a subpoena duces tecum issued by a court |
8 | in connection with a grand jury investigation of the |
9 | alleged violation. |
10 | (iv) Service of any such demand or any petition |
11 | filed under this paragraph shall be made in the manner |
12 | prescribed by the Pennsylvania Rules of Civil Procedure |
13 | for service of writs and complaints. |
14 | (v) A verified return by the individual serving a |
15 | demand or petition setting forth the manner of the |
16 | service shall be prima facie proof of the service. In the |
17 | case of service by registered or certified mail, the |
18 | return shall be accompanied by the return post office |
19 | receipt of delivery of the demand. |
20 | (vi) (A) Any party upon whom any demand issued |
21 | under this subsection has been duly served shall make |
22 | the material available for inspection and copying or |
23 | reproduction to the investigator designated at the |
24 | principal place of business of the party, or at |
25 | another place as the investigator and party may agree |
26 | or as the court may direct under this paragraph, on |
27 | the return date specified in the demand. The party |
28 | may upon agreement of the investigator substitute |
29 | copies of all or any part of the material for the |
30 | originals. |
31 | (B) The investigator to whom documentary |
32 | material is delivered shall take physical possession |
33 | of it and shall be responsible for the use for which |
34 | it is made and for its return under this paragraph. |
35 | The investigator may cause the preparation of copies |
36 | of the documentary material as may be required for |
37 | official use. While in the possession of the |
38 | investigator, no material produced shall be available |
39 | for examination without the consent of the party who |
40 | produced the material by an individual other than the |
41 | Attorney General or investigator. Under reasonable |
42 | terms and conditions as the Attorney General shall |
43 | prescribe, documentary material while in the |
44 | possession of the investigator shall be available for |
45 | examination by the party who produced the material or |
46 | a duly authorized representative of the party. |
47 | (C) Upon completion of the investigation for |
48 | which documentary material was produced under this |
49 | paragraph and any case or proceeding arising from the |
50 | investigation, the investigator shall return to the |
51 | party who produced the material all the material |
|
1 | other than copies made under this paragraph which |
2 | have not passed into the control of any court or |
3 | grand jury through introduction into the record of |
4 | the case or proceeding. |
5 | (D) When documentary material has been produced |
6 | by a party under this paragraph for use in an |
7 | investigation and no case or proceeding arising |
8 | therefrom has been instituted within a reasonable |
9 | time after completion of the examination and analysis |
10 | of all evidence assembled in the course of the |
11 | investigation, the party shall be entitled, upon |
12 | written demand made upon the Attorney General, to the |
13 | return of all documentary material, other than copies |
14 | made under this paragraph, produced by the party. |
15 | (vii) Whenever a person or enterprise fails to |
16 | comply with a civil investigative demand duly served upon |
17 | him under this paragraph or whenever satisfactory copying |
18 | or reproduction of the material cannot be done and the |
19 | party refuses to surrender the material, the Attorney |
20 | General may file, in Commonwealth Court, and serve upon |
21 | the party a petition for an order of the court for the |
22 | enforcement of this paragraph. |
23 | (viii) Within 20 days after the service of the |
24 | demand upon a person or enterprise, or at any time before |
25 | the return date specified in the demand, whichever period |
26 | is shorter, the party may file, in Commonwealth Court, |
27 | and serve upon the Attorney General a petition for an |
28 | order of the court modifying or setting aside the demand. |
29 | The time allowed for compliance with the demand in whole |
30 | or in part as deemed proper and ordered by the court |
31 | shall not run during the pendency of the petition in the |
32 | court. The petition shall specify each ground upon which |
33 | the petitioner relies in seeking the relief, and may be |
34 | based upon a failure of the demand to comply with the |
35 | provisions of this paragraph or upon a constitutional or |
36 | other legal right or privilege of the party. |
37 | (ix) When the Attorney General is in custody or |
38 | control of documentary material delivered by a party in |
39 | compliance with a demand, the party may file, in |
40 | Commonwealth Court, and serve upon the Attorney General a |
41 | petition for an order of the court requiring the |
42 | performance of a duty imposed by this paragraph. |
43 | (x) Whenever a petition is filed under this |
44 | paragraph, the court shall have jurisdiction to hear and |
45 | determine the matter so presented, and, after a hearing |
46 | at which all parties are represented, to enter an order |
47 | as may be required to carry into effect the provisions of |
48 | this paragraph. |
49 | (3) Whenever an individual refuses, on the basis of his |
50 | fifth amendment to the Constitution of the United States |
51 | privilege against self-incrimination, to comply with a civil |
|
1 | investigative demand issued under paragraph (2), the Attorney |
2 | General may invoke the provisions of 42 Pa.C.S. § 5947 |
3 | (relating to immunity of witnesses). |
4 | (4) The Attorney General may delegate the authority to |
5 | issue civil investigative demands under this subsection. If a |
6 | civil investigative demand is an express demand for the |
7 | production of discovery, the Attorney General or his designee |
8 | shall cause to be served, in any manner authorized under this |
9 | subsection, a copy of the demand upon the person from whom |
10 | the discovery was obtained and shall notify the person to |
11 | whom the demand is issued of the date on which the copy was |
12 | served. Any information obtained by the Attorney General or |
13 | his designee under this subsection may be shared with a qui |
14 | tam plaintiff if the Attorney General or his designee |
15 | determines it is necessary as part of an investigation of a |
16 | claim. |
17 | Section 450.4. Limitation of actions; prior activities; burden |
18 | of proof. |
19 | (a) Statute of limitations.-- |
20 | (1) A civil action under section 450.3 may not be |
21 | brought more than ten years after the date on which the |
22 | violation was committed. |
23 | (2) (i) If the Commonwealth elects to intervene and |
24 | proceed with an action brought under section 450.3(b), |
25 | the Commonwealth may file its own complaint or amend the |
26 | complaint of the qui tam plaintiff who brought the action |
27 | in order to clarify or add detail to the claims and to |
28 | add any additional claims with respect to which the |
29 | Commonwealth contends it is entitled to relief. |
30 | (ii) If the Commonwealth makes an election under |
31 | subparagraph (i), any such Commonwealth pleading shall |
32 | relate back to the filing date of the complaint of the |
33 | qui tam plaintiff to the extent that the claim of the |
34 | Commonwealth arises out of the conduct, transactions or |
35 | occurrences set forth, or attempted to be set forth, in |
36 | the qui tam plaintiff's complaint. |
37 | (b) Burden of proof.--In any action brought under section |
38 | 450.3, the Commonwealth or the qui tam plaintiff shall be |
39 | required to prove all essential elements of the cause of action, |
40 | including damages, by a preponderance of the evidence. |
41 | (c) Estoppel.--Notwithstanding any other provision of law, a |
42 | guilty verdict rendered in a criminal proceeding charging false |
43 | statements or fraud, whether upon a verdict after trial or upon |
44 | a plea of guilty or nolo contendere, shall estop the defendant |
45 | from denying the essential elements of the offense in any action |
46 | which involves the same transaction as in the criminal |
47 | proceeding and which is brought under section 450.3(a) or (b). |
48 | Section 450.5. Remedies under other laws; severability of |
49 | provisions; liberality of legislative construction. |
50 | (a) Remedies under other laws.--The provisions of this |
51 | subarticle are not exclusive and the remedies provided for in |
|
1 | this subarticle shall be in addition to any other remedies |
2 | provided for in any other law or available under common law. |
3 | (b) Liberality of legislative construction.--This chapter |
4 | shall be liberally construed and applied to promote the public |
5 | interest. |
6 | Section 450.6. Regulations. |
7 | (a) General rule.--The Attorney General shall have the power |
8 | and authority to promulgate rules and regulations which may be |
9 | necessary to carry out the purposes set forth in this |
10 | subarticle. |
11 | (b) Guidelines.--In order to facilitate the speedy |
12 | implementation of this subarticle, the Attorney General shall |
13 | have the power and authority to promulgate, adopt and use |
14 | guidelines which shall be published in the Pennsylvania |
15 | Bulletin. The guidelines shall not be subject to review under |
16 | section 205 of the act of July 31, 1968 (P.L.769, No.240), |
17 | referred to as the Commonwealth Documents Law; sections 204(b) |
18 | and 301(10) of the act of October 15, 1980 (P.L.950, No.164), |
19 | known as the Commonwealth Attorneys Act; or the act of June 25, |
20 | 1982 (P.L.633, No.181), known as the Regulatory Review Act. The |
21 | guidelines shall be effective for not more than two years from |
22 | the effective date of this subarticle. After the expiration of |
23 | the two-year period, the guidelines shall be promulgated as |
24 | regulations. |
25 | Amend Bill, page 2, line 6, by striking out "2" and inserting |
26 | 3 |
27 | Amend Bill, page 4, line 19, by striking out "3" and |
28 | inserting |
29 | 4 |
30 | Amend Bill, page 4, line 30, by striking out "4" and |
31 | inserting |
32 | 5 |
| |
|