Regular Session 2021-2022 House Bill 0042 P.N. 0021

PRINTER'S NO. 21

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

Session of

2021

INTRODUCED BY GROVE, DUNBAR, PICKETT, KEEFER, RYAN, SAYLOR,

ROWE, JAMES, MENTZER, JOZWIAK AND STRUZZI, JANUARY 11, 2021

REFERRED TO COMMITTEE ON JUDICIARY, JANUARY 11, 2021

AN ACT

Providing for liability for false claims, for adoption of

congressional intent of the Federal False Claims Act, for

damages, costs and civil penalties, for powers of Attorney

General, for civil investigative demands and for COVID-19-

related liability.

TABLE OF CONTENTS

Chapter 1. Preliminary Provisions

Section 101. Short title.

Section 102. Declaration of policy.

Section 103. Definitions.

Chapter 3. False Claims

Section 301. Acts subjecting persons to liability and damages.

Section 302. Attorney General investigations, prosecutions and

civil actions.

Section 303. Civil investigative demands.

Section 304. Disposition of Commonwealth's proceeds.

Section 305. Report.

Section 306. Statute of limitations, burden of proof and

estoppel.

Section 307. Relief from retaliatory actions.

Section 308. Actions and remedies under other laws.

Section 309. Qualification of act for increase share of

recoveries.

Section 310. Rules of procedure.

Section 311. Implementation.

Section 312. Jurisdiction and Attorney General as relator in

Federal false claims actions.

Chapter 5. COVID-19 Related Liability

Section 501. Definitions.

Section 501.1. School and child care liability.

Section 502. Personal protective equipment liability.

Section 503. Business or government services liability.

Section 504. Covered provider liability.

Section 505. Application of chapter.

Section 506. Construction of chapter.

Chapter 7. Miscellaneous Provisions

Section 701. Nonseverability.

Section 702. Expiration.

Section 703. Effective date.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

CHAPTER 1

PRELIMINARY PROVISIONS

Section 101. Short title.

This act shall be known and may be cited as the Commonwealth

Fraud Prevention and COVID-19-Related Liability Act.

Section 102. Declaration of policy.

The General Assembly declares that this act adopts the intent

of the Congress of the United States in enacting the False

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Claims Act (Public Law 97-258, 31 U.S.C. §§ 3729-3733) on

September 13, 1982, including the amendments enacted October 27,

1986 (Public Law 99-562, 100 Stat. 3153), and all subsequent

amendments.

Section 103. Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Claim." As follows:

(1) From the effective date of this section through

December 31, 2021, a request or demand for money or property

utilizing Federal or State funds appropriated in response to

COVID-19.

(2) Beginning January 1, 2022, a request or demand for

money or property, whether under contract or otherwise and

regardless of whether the Commonwealth has title to the money

or property that is presented, submitted or otherwise made

to:

(i) An employee, officer or agent of the

Commonwealth.

(ii) A contractor, grantee or other recipient, and

any portion of the money or property will be spent or

used on the Commonwealth's behalf or to advance a program

or interest of the Commonwealth, and the Commonwealth:

(A) provides or has provided any portion of the

money or property requested or demanded; or

(B) will reimburse the contractor, grantee or

other recipient for any portion of the money or

property that is requested or demanded.

(3) The term does not include requests or demands for

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money or property that the Commonwealth has paid to an

individual as compensation for employment or as an income

subsidy with no restrictions on the individual's use of the

money or property.

(4) To the extent it is not connected to a request or

demand for money or property, a filing with the Commonwealth

pursuant to the Commonwealth's insurance laws shall not

constitute a claim.

"COVID-19." The novel coronavirus as identified in the

Governor's proclamation of disaster emergency issued on March 6,

2020, published at 50 Pa.B. 1644 (March 21, 2020).

"Knowingly." As follows:

(1) Whenever a person, with respect to information, does

any of the following:

(i) Has actual knowledge of the information.

(ii) Acts in deliberate ignorance of the truth or

falsity of the information.

(iii) Acts in reckless disregard of the truth or

falsity of the information.

(2) Proof of specific intent to defraud is not required.

"Legal claim." A claim for relief at law or equity, whether

contemplated or asserted, including any claim, demand, account,

note or any other cause of action or liability.

"Material." A natural tendency to influence, or be capable

of influencing, the payment or receipt of money or property.

"Obligation." An established duty, whether or not fixed,

arising from any of the following:

(1) An express or implied contractual relationship.

(2) An express or implied grantor-grantee relationship.

(3) An express or implied licensor-licensee

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relationship.

(4) A fee-based or similar relationship.

(5) A statute or regulation.

(6) The retention of an overpayment.

"Official use." A use that is consistent with the law and

the regulations and policies of the Office of Attorney General,

including the following:

(1) Use in connection with internal memoranda and

reports.

(2) Communications between the Office of Attorney

General and a Federal, State or local government agency or a

contractor of a Federal, State or local government agency,

undertaken in furtherance of an investigation or prosecution

of an action.

(3) Interviews of a qui tam plaintiff or other witness.

(4) Oral examinations.

(5) Depositions.

(6) Preparation for and response to civil discovery

requests.

(7) Introduction into the record of an action or

proceeding.

(8) Applications, motions, memoranda and briefs

submitted to a court or other tribunal.

(9) Communications with investigators, auditors,

consultants and experts, the counsel of other parties,

arbitrators and mediators, concerning an investigation,

action or proceeding.

"Original source." An individual who:

(1) prior to a public disclosure under section 302(f)

(2), has voluntarily disclosed to the Commonwealth the

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information on which the allegations or transactions in a

claim are based; or

(2) has knowledge that is independent of and materially

adds to the publicly disclosed allegations or transactions

and who has voluntarily provided the information to the

Commonwealth before filing an action under section 302.

"Person." A natural person, corporation, firm, association,

organization, partnership, limited liability company, business,

trust, business trust, estate or foundation.

"Qui tam plaintiff." A person bringing a civil action under

section 302.

CHAPTER 3

FALSE CLAIMS

Section 301. Acts subjecting persons to liability and damages.

(a) Liability.--A person who commits an act prohibited under

subsection (b) shall be liable to the Commonwealth for three

times the amount of damages that the Commonwealth sustains

because of the act of that person.

(b) Prohibited acts.--A person who commits any of the

following acts shall also be liable to the Commonwealth, subject

to subsection (f), for a civil penalty of not less than $5,500

and not more than $11,000 for each violation:

(1) Knowingly presents or causes to be presented 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 material to a false or fraudulent

claim.

(3) Has possession, custody or control of property or

money used or to be used by the Commonwealth and knowingly

delivers or causes to be delivered less than all of the money

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or property.

(4) Is authorized to make or deliver a document

certifying receipt of property used or to be used by the

Commonwealth and, intending to defraud the Commonwealth,

makes or delivers a receipt without completely knowing that

the information on the receipt is true.

(5) Knowingly buys or receives as a pledge of an

obligation or debt, public property from an officer or

employee of the Commonwealth who lawfully may not sell or

pledge the property.

(6) Knowingly makes, uses or causes to be made or used,

a false record or statement material to an obligation to pay

or transmit money or property to the Commonwealth or

knowingly conceals, or knowingly and improperly avoids or

decreases, an obligation to pay or transmit money or property

to the Commonwealth.

(7) Knowingly fails to disclose a fact, event or

occurrence material to an obligation to pay or transmit money

or property to Commonwealth.

(8) Is a beneficiary of an inadvertent submission of a

false claim, subsequently discovers the falsity of the claim

and fails to disclose the false claim to the Commonwealth

within a reasonable time after discovery of the false claim.

(9) Conspires to commit a violation of paragraph (1),

(2), (3), (4), (5), (6), (7) or (8).

subsection (a), the court may assess not less than two times the

amount of damages that the Commonwealth sustains because of the

act of the person if the court finds all of the following:

(1) The person that commits the violation under this

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section furnished to the Commonwealth officials who are

responsible for investigating false claims violations with

all information known to that person about the violation

within 45 days after the date on which the person first

obtained the information.

(2) The person fully cooperated with an investigation by

the Commonwealth.

(3) At the time when the person furnished the

Commonwealth with information about the violation under this

section or at the time when an administrative action is

commenced with respect to the violation, the person did not

have actual knowledge of the existence of an investigation

into the violation.

(d) Exclusion.--This section does not apply to claims,

records or statements made under the act of March 4, 1971

(P.L.6, No.2), known as the Tax Reform Code of 1971.

(e) Actions to recover damages.--A person who is liable for

damages or civil penalties under subsection (a) or (b) shall

also be liable to the Commonwealth for the reasonable costs of a

civil action brought to recover the damages or civil penalties

under subsection (a) or (b), including reasonable costs to the

Office of Attorney General.

(f) Adjustments.--The civil penalties payable under

subsection (b) shall be adjusted from time to time consistent

with the Federal Civil Penalties Inflation Adjustment Act of

1990 (Public Law 104-410, 28 U.S.C. § 2461).

(g) Exemption from disclosure.--Information furnished under

subsection (c) shall be exempt from disclosure under the act of

February 14, 2008 (P.L.6, No.3), known as the Right-to-Know Law.

(h) Recipient liability restricted.--A person who is a

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recipient of public support services shall not be liable under

this section unless the person intentionally violates subsection

(a) and benefits financially from the violation.

Section 302. Attorney General investigations, prosecutions and

civil actions.

(a) Responsibilities.--The following shall apply:

(1) The Attorney General shall investigate a violation

of section 301. If the Attorney General finds that a person

has violated or is violating section 301, the Attorney

General may bring a civil action under this section against

that person. Nothing under section 1407 of the act of June

13, 1967 (P.L.31, No.21), known as the Human Services Code,

shall be construed to limit the authority of the Attorney

General to investigate or prosecute violations under section

301.

(2) The Attorney General may designate a district

attorney to serve as the Attorney General's designee,

investigate a violation of section 301 and bring a civil

action under this section against a person that has violated

or is violating section 301. The Attorney General may rescind

the designation made under this paragraph.

(b) Actions by qui tam plaintiffs.--

(1) A qui tam plaintiff may bring a civil action for a

violation of section 301 for the qui tam plaintiff and for

the Commonwealth in the name of the Commonwealth. Once filed,

the action may be dismissed only if the court and the

Attorney General give written consent to the dismissal and

their reasons for consenting.

(2) A copy of the complaint and written disclosure of

substantially all material evidence and information the qui

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tam plaintiff possesses shall be served promptly on the

Attorney General as provided for in the Pennsylvania Rules of

Civil Procedure or applicable court rules. The complaint

shall be filed in camera and shall remain under seal for at

least 120 days and shall not be served on the defendant until

the court orders the service. The Commonwealth may elect to

intervene and proceed with the action within 120 days after

the Commonwealth receives the complaint and the material

evidence and information.

(3) The Commonwealth may, for good cause shown, move the

court for extensions of the time during which the complaint

remains under seal under paragraph (2). The motions may be

supported by affidavits or other submissions in camera. The

defendant shall not be required to respond to a complaint

filed under this section until the complaint is unsealed and

served upon the defendant under the Pennsylvania Rules of

Civil Procedure or applicable court rule.

(4) Before the expiration of the 120-day period or any

extensions obtained under paragraph (3), the Commonwealth

shall:

(i) proceed with the action; or

(ii) notify the court that the Commonwealth declines

to take over the action, in which case the qui tam

plaintiff shall have the right to conduct the action.

under subsection (b), no person other than the Commonwealth may

intervene or bring a related action based on the facts

underlying the pending action.

(d) Rights in qui tam actions.--

(1) If the Commonwealth proceeds with the action, the

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Commonwealth shall have the primary responsibility for

prosecuting the action and shall not be bound by an act of

the qui tam plaintiff. The qui tam plaintiff shall have the

right to continue as a party to the action, subject to the

limitations set forth under paragraph (2).

(2) The following apply:

(i) Upon notice provided to the qui tam plaintiff,

the Commonwealth may move to dismiss the action despite

the objections of the qui tam plaintiff. The court may

dismiss the action upon a showing of good cause if the

qui tam plaintiff has been notified by the Commonwealth

of the filing of the motion and the court has provided

the qui tam plaintiff with an opportunity to oppose the

motion and present evidence at a hearing.

(ii) The Commonwealth may settle the action with the

defendant despite the objections of the qui tam plaintiff

if the court determines, after a hearing providing the

qui tam plaintiff an opportunity to present evidence,

that the proposed settlement is fair, adequate and

reasonable under the circumstances. Upon a showing of

good cause, the hearing may be held in camera. Upon

motion of the Commonwealth, the court shall for good

cause shown, order a partial lifting of the seal to

facilitate the investigative process or settlement.

(iii) Upon a showing by the Commonwealth that

unrestricted participation of the qui tam plaintiff

during the course of the action by the qui tam plaintiff

would interfere with or unduly delay the Commonwealth's

prosecution of the case or would be repetitious,

irrelevant or for purposes of harassment, the court may,

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in its discretion, impose limitations on the qui tam

plaintiff's participation by:

(A) limiting the number of witnesses the qui tam

plaintiff may call;

(B) limiting the length of the testimony of the

witnesses;

examination of witnesses; or

(D) otherwise limiting the participation by the

qui tam plaintiff in the action.

(iv) Upon a showing by the defendant that

unrestricted participation during the action by the qui

tam plaintiff would be for the purpose of harassment or

would cause the defendant undue burden or unnecessary

expense, the court may limit the participation by the qui

tam plaintiff in the action.

(3) If the Commonwealth elects not to proceed with the

action, the qui tam plaintiff shall have the right to conduct

the action. If the Commonwealth requests, the Commonwealth

shall be served with copies of all pleadings filed in the

action and shall be supplied, at the expense of the

Commonwealth, with copies of all deposition transcripts and

other discovery produced in the action. The court, without

limiting the status and rights of the qui tam plaintiff, may

permit the Commonwealth to intervene at a later date upon a

showing of good cause.

(4) Whether or not the Commonwealth proceeds with the

action, upon a showing by the Commonwealth that certain

actions of discovery by the qui tam plaintiff would interfere

with the Commonwealth's investigation or prosecution of a

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criminal or civil matter arising out of the same facts, the

court may stay the discovery for a period of not more than 60

days. The showing shall be conducted in camera. The court may

extend the 60-day period upon a further showing in camera

that the Commonwealth has pursued the criminal or civil

investigation or proceedings with reasonable diligence and

that the discovery proposed in the civil action will

interfere with the ongoing criminal or civil investigations

or proceedings.

(5) Notwithstanding the provisions under subsection (b),

the Commonwealth may elect to pursue the Commonwealth's legal

claim through an alternate remedy available to the

Commonwealth, including an administrative proceeding to

determine a civil money penalty. If the alternate remedy is

pursued in another proceeding, the qui tam plaintiff shall

have the same rights in the proceeding as if the action had

continued under this section. A 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 of the

Commonwealth, if the time for filing the appeal regarding the

finding or conclusion has expired without an appeal having

been filed or if the finding or conclusion is not subject to

judicial review.

(e) Award to qui tam plaintiff.--

(1) If the Commonwealth proceeds with an action brought

by a qui tam plaintiff, the qui tam plaintiff shall, subject

to the provisions of this paragraph, receive at least 15% but

not more than 25% of the proceeds of the action or settlement

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of the legal claim, depending upon the extent to which the

qui tam plaintiff and counsel for the qui tam plaintiff

substantially contributed to the prosecution of the action.

If the court finds that the action is based primarily on

disclosures of specific information, other than information

provided by the qui tam plaintiff, relating to allegations or

transactions in a criminal, civil or administrative hearing

or in a legislative or administrative report, hearing, audit

or investigation or from the news media, the court may award

a sum the court considers appropriate, but in no case more

than 10% of the proceeds, taking into account the

significance of the information and the role of the qui tam

plaintiff in advancing the action. A payment to a qui tam

plaintiff under this subsection shall be made from the

proceeds of the action or settlement of the legal claim. The

qui tam plaintiff shall also receive an amount for reasonable

expenses which the court finds were necessarily incurred,

plus reasonable attorney fees and costs. The expenses, fees

and costs shall be awarded against the defendant.

(2) If the Commonwealth does not proceed with an action

under this section, the qui tam plaintiff shall receive at

least 25% but not more than 30% of the proceeds of the action

or settlement of the legal claim, as the court deems

reasonable. The amount shall be paid from the proceeds of the

action or settlement of the legal claim. The qui tam

plaintiff shall also receive an amount for reasonable

expenses which the court finds to have been necessarily

incurred, plus reasonable attorney fees and costs. The

expenses, fees and costs shall be awarded against the

defendant.

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(3) Whether or not the Commonwealth proceeds with an

action under this section, if the court finds the qui tam

plaintiff planned and initiated the violation of section 301

upon which the action was filed, then the court may, to the

extent the court considers appropriate, reduce the share of

the proceeds of the action which the qui tam plaintiff would

otherwise receive under paragraph (1) or (2), taking into

account the role of the qui tam plaintiff in advancing the

action and any relevant circumstances pertaining to the

violation. If the qui tam plaintiff is convicted of criminal

conduct arising from the qui tam plaintiff's role in the

violation, the qui tam plaintiff shall be dismissed from the

civil action and shall not receive a share of the proceeds of

the action. The dismissal shall not prejudice the right of

the Commonwealth to continue the action.

(4) If the Commonwealth does not proceed with the action

under this section and the qui tam plaintiff conducts the

action, the court may award to the defendant reasonable

attorney fees and expenses if the defendant prevails in the

action and the court finds the legal claim of the qui tam

plaintiff was clearly frivolous, clearly vexatious or brought

primarily for purposes of harassment.

(f) Certain actions barred.--

(1) A court does not have jurisdiction over an action

filed under this section against the Governor, the Lieutenant

Governor, the Attorney General, the Auditor General, the

Treasurer, a cabinet member, a deputy secretary, a member of

the General Assembly or a member of the judiciary if the

action is based on evidence or information known to the

Commonwealth when the action was brought.

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(2) Subject to the provisions under paragraph (3), the

court shall dismiss an action or legal claim brought under

subsection (b) if substantially the same allegations or

transactions alleged in the action or legal claim were

publicly disclosed the news media.

(3) The court may not dismiss an action under paragraph

(2) if:

(i) the action was brought by the Attorney General;

(ii) the dismissal is opposed by the Attorney

General; or

(iii) the qui tam plaintiff is an original source of

the information.

(4) In no event may a person bring an action under this

section that is based upon allegations or transactions which

are the subject of a civil suit or an administrative civil

money penalty proceeding in which the Commonwealth is already

a party.

(g) Commonwealth not liable for expenses.--The Commonwealth

shall not be liable for expenses which a qui tam plaintiff

incurs in bringing an action under this section.

(h) (Reserved).

(i) Cooperation by agencies.--Commonwealth agencies shall

cooperate in the investigation and prosecution of false claims

under this act, whether the claims are brought by the Attorney

General or a qui tam plaintiff.

Section 303. Civil investigative demands.

(a) Issuance and service.--The following shall apply:

(1) For the purpose of this subsection, whenever the

Attorney General or the Attorney General's designee has

reason to believe that a person may be in possession, custody

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or control of documentary material or information relevant to

a false claims investigation under this act, the Attorney

General or designee may, before commencing a civil action

under section 302(a) or making an election under section

302(b), issue in writing or cause to be served upon the

person a civil investigative demand requiring the person to:

(i) produce documentary material for inspection and

copying;

(ii) answer in writing written interrogatories with

respect to documentary material or information;

(iii) give oral testimony concerning documentary

material or information; or

(iv) furnish any combination of materials, answers

or testimony.

(2) Whenever a civil investigative demand is an express

demand for a product of discovery, the Attorney General or

the Attorney General's designee shall:

(i) cause to be served in any manner authorized by

this subsection a copy of the demand upon the person from

whom or which the discovery was obtained; and

(ii) notify the demand issuee of the date on which

the copy was served.

(3) Except as otherwise prohibited by the laws of this

Commonwealth, any information the Attorney General or the

Attorney General's designee obtains under this section may be

shared with a qui tam plaintiff, if the Attorney General or

designee determines it is necessary as part of a false claim

investigation conducted under this act.

(4) Notwithstanding the provisions of 18 Pa.C.S. Ch. 91

(relating to criminal history record information) or any

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other law to the contrary, the Attorney General may access

and share data, records, documents or other information,

including criminal history record information, intelligence

information, investigative information and treatment

information obtained during the course of, and as necessary

to advance, an investigation or prosecution of a potential or

actual violation of section 301 with the following:

(i) A section, unit, subunit or individual employee

or agent of the Office of Attorney General authorized and

designated by the Attorney General to investigate or

prosecute a potential or actual violation of section 301.

(ii) The United States Department of Justice.

(iii) The appropriate civil prosecutorial authority

of another jurisdiction.

(5) The recipient described under paragraph (4)(i) shall

be subject to the provisions of 18 Pa.C.S. Ch. 91 relating to

further disclosure, dissemination and sharing of the

information with noncriminal justice agencies, departments

and individuals, except as may be permitted under paragraph

(4)(ii) and (iii).

(b) Contents and deadlines.--The following shall apply:

(1) A civil investigative demand shall state the nature

of the conduct constituting the alleged violation of this act

that is under investigation and the applicable provisions of

this act alleged to be violated.

(2) If the civil investigative demand is for the

production of documentary material, the demand shall:

(i) describe each class of documentary material to

be produced with definiteness and certainty as to permit

the material to be fairly identified;

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(ii) prescribe a return date for each class that

will provide a reasonable time period within which the

material demanded may be assembled and made available for

inspection and copying; and

(iii) identify the false claims investigator to whom

the material shall be available.

(3) If the civil investigative demand is for answers to

written interrogatories, the demand shall:

(i) State with specificity the written

interrogatories to be answered.

(ii) Prescribe dates at which time the answers to

the written interrogatories shall be submitted.

(iii) Identify the false claims investigator to whom

the answers shall be submitted.

(4) If the civil investigative demand is for oral

testimony, the demand shall:

(i) Prescribe a date, time and place at which the

oral testimony shall be given.

(ii) Identify a false claims investigator who shall

conduct the examination and the custodian to whom the

transcript of the examination shall be submitted.

(iii) Specify that attendance and testimony are

necessary to the conduct of the false claims

investigation.

(iv) Describe the general purpose for which the

demand is being issued and general nature of the

testimony, including the primary areas of inquiry, which

will be taken under the demand.

(5) A civil investigative demand shall contain the

following statement printed at the beginning of the demand:

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You have the right to seek the assistance of an attorney,

who may represent you in all phases of the investigation

of which this civil investigative demand is a part.

(6) A civil investigative demand that is an express

demand for a product of discovery shall not be returned or

returnable until 20 days after a copy of the demand has been

served upon the person from whom or which the discovery was

obtained.

(7) The date prescribed for commencement of oral

testimony under a civil investigative demand shall not be

less than seven days after the date on which the demand is

served, unless the Attorney General or a designee determines

that exceptional circumstances exist and warrant the

commencement of testimony within a lesser time period.

(8) The Attorney General, or a designee, may not

authorize the issuance of more than one civil investigative

demand for the same person's oral testimony unless:

(i) the person requests otherwise; or

(ii) the Attorney General or designee notifies the

person in writing that an additional demand for oral

testimony is necessary.

apply:

(1) A civil investigative demand may not require the

production of documentary material, the submission of answers

to written interrogatories or the giving of oral testimony if

the material, answers or testimony would be protected from

disclosure under:

(i) the standards applicable to subpoenas or

subpoenas duces tecum issued by a court of this

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Commonwealth to aid in a grand jury investigation; or

(ii) the standards applicable to discovery under the

Pennsylvania Rules of Civil Procedure or other applicable

court rule, to the extent that the application of the

standards to a demand is appropriate and consistent with

the provisions and purposes of this section.

(2) With respect to the effect on other orders, rules

and laws:

(i) Except where a statute explicitly precludes the

superseding effect imposed by this paragraph, a civil

investigative demand that is an express demand for a

product of discovery supersedes an inconsistent order,

rule or provision of law, other than in this section,

that prevents or restrains disclosure of the product of

discovery to any person.

(ii) A person's disclosure of a product of discovery

under an express demand does not constitute a waiver of

any right or privilege to resist discovery of trial

preparation materials that the person may be entitled to

invoke.

(d) Service and jurisdiction.--Except as otherwise provided,

the following apply to civil investigative demands issued and

served under this section and petitions filed under subsection

(j):

(1) The following shall apply regarding by whom served:

(i) A civil investigative demand may be served by a

false claims investigator, a law enforcement officer or

another individual authorized by law to serve process in

the jurisdiction where the demand is served.

(ii) A petition may be served by any person

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authorized to serve process under the Pennsylvania Rules

of Civil Procedure or other applicable court rule.

(2) The following shall apply regarding location of

service:

(i) A civil investigative demand or petition may be

served upon a person or entity consistent with and in the

manner prescribed by 42 Pa.C.S. Ch. 53 (relating to bases

of jurisdiction and interstate and international

procedure) and the Pennsylvania Rules of Civil Procedure

or other applicable court rule, for personal service

inside or outside this Commonwealth.

(ii) To the extent that the courts of the

Commonwealth can assert jurisdiction over a person

outside this Commonwealth, a court with jurisdiction over

an action filed under this act shall have the same

jurisdiction to take action respecting the person's

compliance with this section that it would have if the

person resided within the court's jurisdiction.

(3) The following shall apply regarding service upon

legal entities and natural persons:

(i) A civil investigative demand or petition may be

served upon a legal entity by:

(A) delivering an executed copy of the demand or

petition to any partner, executive officer, managing

agent or general agent of the legal entity or to an

employee designated or agent authorized by

appointment or law to receive service of process on

behalf of the legal entity;

(B) delivering an executed copy of the demand or

petition to the legal entity's principal office or

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place of business;

petition in the United States mail by registered or

certified mail with a return receipt requested,

addressed to the legal entity at its principal office

or place of business; or

(D) any other method provided by the

Pennsylvania Rules of Civil Procedure or other

applicable court rule.

(ii) A civil investigative demand or petition may be

served upon a natural person by:

(A) delivering an executed copy of the demand or

petition to the person;

(B) depositing an executed copy of the demand or

petition in the United States mail by registered or

certified mail with a return receipt requested,

addressed to the person at the person's residence or

principal office or place of business; or

Pennsylvania Rules of Civil Procedure or other

applicable court rule.

(4) A verified return by the individual serving a civil

investigative demand or petition, specifying the manner of

service, shall be proof of service. In the case of service by

registered or certified mail, the return post office receipt

of the demand's or petition's delivery shall accompany the

return.

(e) Documentary material.--

(1) The following shall apply regarding verified

certificate:

20210HB0042PN0021 - 23 -

(i) The production of documentary material shall be

made under a written and verified certificate, in the

form as the demand designates, by the following

individuals:

(A) if the demand issuee is a natural person, by

the demand issuee; and

(B) if the demand issuee is not a natural

person, by an individual who has knowledge of facts

and circumstances relating to the production and is

authorized to act on the demand issuee's behalf.

(ii) The certificate shall state that all the

documentary material required by the demand and in the

demand issuee's possession, custody or control has been

produced and made available to the false claims

investigator identified in the demand.

(2) The following shall apply regarding production of

materials:

(i) A demand issuee shall make the demanded material

available for inspection and copy to the false claims

investigator identified in the demand:

(A) at the demand issuee's principal place of

business;

(B) at another place as the false claims

investigator and the demand issuee thereafter may

agree and prescribe in writing; or

(ii) The documentary material shall be made

available on the return date specified in the demand or

on a later date as the false claims investigator may

prescribe in writing. The demand issuee may, upon written

20210HB0042PN0021 - 24 -

agreement with the false claims investigator, substitute

copies for originals of all or any part of the material.

(3) If the demand issuee objects to the production of

any portion of the required documentary material or otherwise

withholds any portion of the material, the issuee shall with

particularity state the reasons for the objection or

withholding and identify all withheld material.

(f) Interrogatories.--

(1) With respect to answers and verified certificates,

each interrogatory in a civil investigative demand shall be

answered separately and fully in writing under oath and shall

be submitted under a verified certificate, in the form as the

demand designates stating that all information required by

the demand and in the demand issuee's possession, custody,

control or knowledge has been submitted by the following

individuals:

(i) if the demand issuee is a natural person, by the

demand issuee; and

(ii) if the demand issuee is not a natural person,

by the individuals responsible for answering each

interrogatory.

(2) With respect to objections and withholding of

information, if the demand issuee objects to an interrogatory

or any portion thereof, or otherwise withholds information,

the demand issuee shall state with particularity the reasons

for the objection or withholding and identify all withheld

information.

(g) Oral examinations.--The following shall apply:

(1) With respect to procedures:

(i) The examination of a person under a civil

20210HB0042PN0021 - 25 -

investigative demand for oral testimony shall be taken

before an officer authorized to administer oaths and

affirmations by the laws of this Commonwealth or of the

place where the examination is held.

(ii) The officer shall put the witness on oath or

affirmation and shall personally or by someone acting

under the officer's direction and in the officer's

presence, record the witness's testimony.

(iii) The testimony shall be stenographically

transcribed.

(iv) When the transcribing is complete, the officer

shall promptly transmit a copy of the transcript to the

custodian.

(v) This subsection shall not preclude the taking of

testimony by any means authorized by, and in a manner

consistent with, the Pennsylvania Rules of Civil

Procedure or other applicable court rule.

(2) With respect to persons present, the false claims

investigator conducting the examination shall exclude from

the place where the examination is held all persons except

the following:

(i) The witness giving the testimony.

(ii) The attorney for the witness.

(iii) The attorney for the Commonwealth.

(iv) The officer before whom the testimony is to be

taken.

(v) The court reporter taking the testimony.

(vi) Any other person agreed to by the witness and

the attorney for the Commonwealth.

(3) Oral testimony taken under a civil investigative

20210HB0042PN0021 - 26 -

demand shall be taken in the county or city within which the

person resides, is found, or transacts business, or in a

place to which the false claims investigator and the witness

otherwise agree.

(4) With respect to transcripts:

(i) When the transcript of testimony is completed,

the false claims investigator 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 the witness

waives the reading and examination.

(ii) The officer or false claims investigator shall

enter and identify on the transcript any changes in form

or substance that the witness desires to make with a

statement of the reasons the witness gives for making the

changes.

(iii) The witness shall sign the transcript after

the changes, if any, are made, unless the witness waives

the signing in writing, is ill, cannot be found, or

refuses to sign. If the witness does not sign the

transcript within 30 days after being afforded a

reasonable opportunity to sign it, the officer or false

claims investigator shall sign it and state on the record

the fact of the witness's waiver, illness, absence or

refusal to sign, together with the reasons, if any, given

for why the witness did not sign the transcript.

(iv) The officer before whom the testimony is taken

shall certify on the transcript that the witness was

sworn by the officer and the transcript is a true record

of the witness's testimony, and the officer shall

20210HB0042PN0021 - 27 -

promptly deliver the transcript or send the transcript by

registered or certified mail to the custodian.

(v) Upon receipt of payment of reasonable charges,

the false claims investigator shall furnish a copy of the

transcript to the witness only, except that the Attorney

General or the Attorney General's designee may, for good

cause, limit the witnesses to inspecting the official

transcript.

(5) With respect to the conduct of oral testimony, the

following shall apply:

(i) A witness compelled to appear for oral testimony

may be accompanied, represented, and advised by counsel.

Counsel may advise the witness in confidence with respect

to any question asked of the witness.

(ii) The witness 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 the objection is claimed that the witness is

entitled to refuse to answer on the grounds of any

constitutional or legal right or privilege, including the

privilege against self-incrimination. The witness may not

otherwise object to or refuse to answer any question and

may not directly or through counsel otherwise interrupt

the oral examination. If a witness refuses to answer a

question, a petition may be filed with the court under

this section for an order compelling the witness to

answer the question.

(6) With respect to fees, a witness appearing for oral

testimony under a civil investigative demand shall be

20210HB0042PN0021 - 28 -

entitled to the same fees and allowances that are paid to

witnesses in the courts of common pleas.

(h) Refusal to comply on self-incrimination privilege

grounds.--The Attorney General may invoke the provisions of 42

Pa.C.S. § 5947 (relating to immunity of witnesses) if a demand

issuee, on the grounds of privilege against self-incrimination,

refuses to:

(1) furnish documentary material or answer an

interrogatory in response to a civil investigative demand;

(2) answer a question asked during oral examination made

under a civil investigative demand; or

(3) otherwise comply with a civil investigative demand.

(i) Custody of documents, answers and transcripts.--

(1) With respect to the designation of a custodian,

unless otherwise set forth by rule adopted by the Attorney

General under section 311, the false claims investigator

identified on a civil investigative demand shall serve as

custodian of documentary material, interrogatory answers and

oral testimony transcripts received under this section. The

Attorney General may designate additional persons as the

Attorney General determines to be necessary to serve as

deputy, alternative or successor custodians.

(2) With respect to responsibility for materials, copies

and disclosure, a false claims investigator who receives

documentary material, interrogatory answers or oral testimony

transcripts under this section shall:

(i) if serving as custodian, take possession of the

material, answers or transcripts and be responsible for

their usage and for the return of documentary material;

20210HB0042PN0021 - 29 -

(ii) if not serving as custodian, transmit the

materials, answers or transcripts to the custodian, who

shall take possession and responsibility for the

materials, answers or transcripts.

(3) With respect to custodian copies, the custodian may

cause the preparation of copies of documentary material,

interrogatory answers or oral testimony transcripts as may be

required for official use by a false claims investigator or

any other officer or employee of the Office of Attorney

General authorized to use the materials, answers or

transcripts in connection with the taking of oral testimony

under this section. Except as otherwise provided in this

section, no documentary material, interrogatory answers or

oral testimony transcripts or copies of the foregoing shall

be available for examination by any individual other than a

false claims investigator or other officer or employee of the

Office of Attorney General.

(4) With respect to restricted disclosure:

(i) The prohibition under paragraph (3) shall not

apply if the person producing material, answers or

transcripts, or in the case of any product of discovery

produced under an express demand for the material, the

person from whom or which the discovery was obtained,

consents.

(ii) Nothing in this paragraph shall be construed to

prevent disclosure to the General Assembly or to a

Commonwealth agency in furtherance of statutory or

constitutional obligations, except that any disclosure

shall be subject to 18 Pa.C.S. Ch. 91.

(iii) While in the custodian's possession and under

20210HB0042PN0021 - 30 -

reasonable terms and conditions as the Attorney General

prescribes, documentary material, interrogatory answers

and oral testimony transcripts shall be made available

for examination by the person that produced them or by

the person's authorized representative.

(5) With respect to the use of documentary material,

answers or transcripts in other proceedings:

(i) Subject to 18 Pa.C.S. Ch. 91 and the rules,

guidelines and procedures adopted by the Attorney General

under section 311, an attorney of the Office of Attorney

General who is designated to appear before a court, grand

jury or Commonwealth agency in a case or proceeding may,

in connection with the case or proceeding, obtain from

the custodian and use any documentary material,

interrogatory answers or oral testimony transcripts that

the attorney determines is required.

(ii) Upon the case's or proceeding's completion, the

attorney shall return to the custodian documentary

material, interrogatory answers or oral testimony

transcripts that have not passed into the court's, grand

jury's or agency's control through introduction into the

case or proceeding's record.

(6) With respect to conditions for return of material,

the following shall apply:

(i) Subject to subparagraphs (ii) and (iii), upon

the written request of a person producing documentary

material under this section, the custodian shall return

the material to the person.

(ii) The custodian shall return the material only

if:

20210HB0042PN0021 - 31 -

(A) all cases or proceedings arising out of the

false claims investigation have been completed; or

(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 false claims

investigation.

(iii) The custodian shall not be required to return

either of the following:

(A) material that has passed into a court, grand

jury or Commonwealth agency's control through

introduction into a case or proceeding's record; or

(B) copies furnished to the false claims

investigator or made for the Attorney General under

this subsection.

(j) Judicial proceedings.--The following shall apply:

(1) With respect to a petition for enforcement, the

Attorney General or the Attorney General's designee may file

and serve upon a person a petition for a court order

enforcing a civil investigative demand if:

(i) the person fails to comply with a demand served

upon the person; or

(ii) satisfactory copying or reproduction of the

material requested in the demand cannot be done and the

person refuses to surrender the material.

(2) With respect to a petition to modify or set aside a

demand, the following shall apply:

(i) A demand issuee that has received a civil

investigative demand may file and serve upon the false

20210HB0042PN0021 - 32 -

claims investigator identified in the demand a petition

for a court order modifying or setting aside the demand.

(ii) If a civil investigative demand is an express

demand for a product of discovery, the person from whom

or which discovery was obtained may, upon receipt of the

demand, file and serve upon the false claims investigator

identified in the demand a petition for a court order

modifying or setting aside those portions of the demand

requiring production of the product of discovery.

(iii) A petition under this paragraph must be filed

within:

(A) the earlier of 20 days after the civil

investigative demand is served on the person or at

any time before the return date specified in the

demand; or

(B) a longer period if the false claims

investigator so prescribes in writing in the demand.

(iv) A petition under this paragraph shall specify

each ground the petitioner relies on in seeking relief

and may be based on either of the following:

(A) failure of the civil investigative demand,

or any portion thereof, to comply with this section's

provisions; or

(B) a constitutional or other legal right or

privilege of the petitioner.

(v) During the pendency of a petition under this

paragraph, the following apply:

(A) The court may stay, as it deems proper,

compliance with all or part of the demand and the

running of time allowed for compliance the demand.

20210HB0042PN0021 - 33 -

(B) The petitioner must comply with any portion

of the demand that is not sought to be modified or

set aside, or otherwise subject to a stay issued by

the court.

(3) With respect to a petition to require custodian's

performance of duties, at any time a custodian possesses or

is in custody or control of documentary material,

interrogatory answers or transcripts of oral testimony given

under a civil investigative demand, the following persons may

file and serve upon the custodian a petition for a court

order requiring the custodian to perform any duty imposed on

the custodian by this section:

(i) the demand issuee furnishing the material,

answers or testimony; and

(ii) in the case of an express demand for a product

of discovery, the person from whom or which discovery was

obtained.

(4) With respect to jurisdiction and contempt, the

following shall apply:

(i) The court shall have jurisdiction to hear and

determine a petition filed under this section and, after

a hearing at which all parties have the opportunity to be

heard, to enter orders as may be required to carry out

the provisions of this section.

(ii) A final order entered by Commonwealth Court

under this section shall be subject to appeal to the

Supreme Court under 42 Pa.C.S. § 723 (relating to appeals

from Commonwealth Court).

(k) Exemption from disclosure.--Documentary material,

interrogatory answers and oral testimony provided under a civil

20210HB0042PN0021 - 34 -

investigative demand issued are exempt from disclosure under the

act of February 14, 2008 (P.L.6, No.3), known as the Right-to-

Know Law.

(l) Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection unless the context clearly indicates otherwise:

"Custodian." The false claims investigator or other

custodian or any deputy or alternate custodian designated by the

Attorney General under subsection (i).

"Demand issuee." A person to whom or which a civil

investigative demand is issued or directed.

"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

or accessible through computer or other information retrieval

systems, together with appropriate and succinct instructions and

all other materials necessary to use or interpret the data

compilations, and any product of discovery.

"False claims investigation." An inquiry conducted by a

false claims investigator for the purposes of ascertaining

whether any person is or has been engaged in a violation of this

act.

"False claims investigator." An attorney or investigator

employed by the Office of Attorney General, or by a district

attorney designated under section 302(a)(2), who is charged with

the duty of enforcing or carrying out the provisions of this

act, or an officer or employee of the Commonwealth acting under

the attorney or investigator's direction and supervision in

connection with a false claims investigation.

"Legal entity." A person other than a natural person.

20210HB0042PN0021 - 35 -

"Person." As defined in 1 Pa.C.S. § 1991 (relating to

definitions).

"Product of discovery." The term includes all of the

following:

(1) The original or duplicate of a deposition

interrogatory, document, thing, result of the inspection of

land or other property, examination or admission that is

obtained by any method of discovery in a judicial or

administrative proceeding of an adversarial nature.

(2) A digest, analysis, selection, compilation or

derivation of an item listed under paragraph (1).

(3) An index or other manner of access to an item listed

under paragraph (1).

"Verified." Supported by oath or affirmation and averred

subject to the penalties of 18 Pa.C.S. § 4904 (relating to

unsworn falsification to authorities).

Section 304. Disposition of Commonwealth's proceeds.

The Commonwealth's share of the proceeds of an action under

this act, not including the costs of a civil action paid to the

Commonwealth under section 301(e) and less any amount legally

required to be paid from the share, shall be distributed as

follows:

(1) The Commonwealth's share of the proceeds shall be

allocated to reimburse the Office of Attorney General or a

district attorney designated under section 302 for the actual

costs incurred to recover damages or penalties under this

act.

(2) If any amount of the Commonwealth's share of the

proceeds or settlement of a legal claim remain after

reimbursing the Office of Attorney General for actual costs

20210HB0042PN0021 - 36 -

incurred, the proceeds of the Commonwealth's share shall be

allocated to reimburse the Commonwealth for the actual costs

incurred as a result of a violation under section 301.

(3) Any remaining funds of the Commonwealth's share of

the proceeds or settlement of a legal claim after the Office

of the Attorney General and the Commonwealth are reimbursed

for actual costs incurred shall be deposited into the Budget

Stabilization Reserve Fund.

Section 305. Report.

(a) Report required.--The Attorney General shall prepare a

report within two years of the publication of the temporary

regulations under section 311. The report shall include actions

taken under this act and shall be submitted to the following:

(1) The Governor.

(2) The Department of Auditor General.

(3) The Independent Fiscal Office.

(4) The Office of Inspector General.

(5) The members of the General Assembly.

(6) The Legislative Budget and Finance Committee.

(b) Contents.--The report shall include the following:

(1) The number of actions filed under this act by the

Attorney General.

(2) The number of actions filed under this act by the

Attorney General that were completed.

(3) The amount that was recovered in actions filed under

this act by the Attorney General through settlement or

through a judgment and, if known, the amount recovered for

damages, penalties and litigation costs.

(4) The number of actions filed by a person other than

the Attorney General under this act.

20210HB0042PN0021 - 37 -

(5) The number of actions filed under this act by a

person other than the Attorney General that were completed.

(6) The amounts that were recovered in actions filed

under this act by a person other than the Attorney General

through settlement or through a judgment and, if known, the

amount recovered for damages, penalties and litigation costs

and the amount recovered by the Commonwealth and the person.

(7) The number of actions filed under this act related

to funds appropriated in response to COVID-19, including the

following:

(i) The Provider Relief Fund.

(ii) The Paycheck Protection Program.

(iii) The Families First Coronavirus Response Act

(Public Law 116-127, 134 Stat. 178).

(iv) The Unemployment Compensation Fund.

(v) Any other stimulus programs put into place by

the Coronavirus Aid, Relief, and Economic Security Act

(Public Law 116-136, 134 Stat. 281).

(8) The amount expended by the Office of Attorney

General for investigation, litigation and all other costs for

legal claims under this act.

(9) A narrative describing the most notable or prevalent

violations of section 301 and recommendations on how

Commonwealth agencies may prevent similar violations from

occurring.

(10) Legislative recommendations that the Attorney

General may have for amendments to this act and any other law

as it relates to this act.

Section 306. Statute of limitations, burden of proof and

estoppel.

20210HB0042PN0021 - 38 -

(a) Statute of limitations.--

(1) Except as otherwise provided under this section, a

civil action under section 302 may not be brought more than

10 years after the date on which the violation was committed.

(2) If a violation is part of a continuing course of

conduct, a civil action under section 302 may not be brought

more than 10 years after the date on which the last violation

in the continuing course of conduct was committed.

(3) If the Commonwealth elects to intervene and proceed

with an action brought under section 302(b), then all of the

following apply:

(i) The Commonwealth may file its own complaint or

amend the complaint of the qui tam plaintiff who brought

the action in order to clarify or add detail to the

claims and to add any additional claims with respect to

which the Commonwealth contends it is entitled to relief.

(ii) The Commonwealth pleading shall relate back to

the filing date of the complaint of the qui tam plaintiff

to the extent that the claim of the Commonwealth arises

out of the conduct, transactions or occurrences

specified, or attempted to be specified, in the qui tam

plaintiff's complaint.

(b) Burden of proof.--In an action brought under section

302, the Commonwealth or the qui tam plaintiff shall be required

to prove all essential elements of the cause of action,

including damages, by a preponderance of the evidence.

final judgment rendered in favor of the Commonwealth in a

criminal proceeding charging false statements or fraud, whether

upon a verdict after trial or upon a plea of guilty or nolo

20210HB0042PN0021 - 39 -

contendere, shall estop the defendant from denying the essential

elements of the offense in an action brought under section 302

that involves the same transaction as in the criminal

proceeding.

Section 307. Relief from retaliatory actions.

(a) General rule.--An employee, contractor or agent shall be

entitled to all relief necessary to make the employee,

contractor or agent whole, if the employee, contractor or agent

is discharged, demoted, suspended, threatened, harassed or in

any other manner discriminated against in the terms and

conditions of employment, contract or agency because of lawful

acts done by the employee, contractor, agent or associated

others in furtherance of an action under this act or other

efforts to stop one or more violations of this act.

(b) Relief.--Relief under subsection (a) shall include

reinstatement with the same seniority status that the employee,

contractor or agent would have had but for the discrimination,

two times the amount of back pay, interest on the back pay and

compensation for special damages sustained as a result of the

discrimination, including litigation costs and reasonable

attorney fees.

brought more than three years after the date on which the

retaliation occurred.

Section 308. Actions and remedies under other laws.

(a) Actions and remedies not exclusive.--The provisions of

this act are not exclusive and the actions and remedies provided

for in this act shall be in addition to any other actions and

remedies provided for in any other law or available under the

common law.

20210HB0042PN0021 - 40 -

(b) Construction.--The availability of an action or remedy

provided for in any other law or available under the common law

shall not be construed to exclude, impair or limit the

availability or use of the provisions of this act.

shall not abrogate or modify any existing statutory or common

law privilege or immunity.

Section 309. Qualification of act for increase share of

recoveries.

(a) Submission.--Within 30 days of the effective date of

this act, the Attorney General shall submit a copy of this act

and any other relevant information to the Office of Inspector

General, United States Department of Health and Human Services

and request a determination that this act meets the requirements

of section 1909(b) of the Social Security Act (49 Stat. 620, 42

U.S.C. § 1396h(b)), in order to qualify the Commonwealth for an

increased share of amounts recovered under this act with respect

to false or fraudulent claims submitted to the medical

assistance program.

(b) Review and recommendations.--If the Office of Inspector

General, United States Department of Health and Human Services

determines that this act does not meet the requirements of

section 1909(b) of the Social Security Act, the Attorney General

shall prepare a report explaining the reasons for the denial and

suggested revisions to this act which would cause this act to

meet the requirements of section 1909(b) of the Social Security

Act. A copy of the report shall be transmitted to the officials

designated to receive the report required under section 305(a).

Section 310. Rules of procedure.

Except as otherwise specified in, or where clearly

20210HB0042PN0021 - 41 -

inconsistent with, this act, proceedings under this act shall be

governed by the Pennsylvania Rules of Civil Procedure or other

applicable court rule.

Section 311. Implementation.

(a) Temporary regulations.--In order to facilitate the

prompt implementation of this chapter, the Attorney General

shall promulgate temporary regulations within six months of the

effective date of this section. The Attorney General shall

promulgate temporary regulations not subject to:

(1) Section 612 of the act of April 9, 1929 (P.L.177,

No.175), known as The Administrative Code of 1929.

(2) Sections 201, 202, 203, 204 and 205 of the act of

July 31, 1968 (P.L.769, No.240), referred to as the

Commonwealth Documents Law.

(3) Sections 204(b) and 301(10) of the act of October

15, 1980 (P.L.950, No.164), known as the Commonwealth

Attorneys Act.

(4) The act of June 25, 1982 (P.L.633, No.181), known as

the Regulatory Review Act.

(b) Publication.--The Attorney General shall transmit the

temporary regulations to the Legislative Reference Bureau for

publication in the Pennsylvania Bulletin no later than six

months after the effective date of this section.

(b.1) Final regulations.--The Attorney General shall

promulgate final regulations within two years of the effective

date of this section. The temporary regulations promulgated

under this section shall expire upon promulgation of the final

regulations.

regulation, guideline or internal policy, shall implement

20210HB0042PN0021 - 42 -

provisions to:

(1) Control a person's disclosure, dissemination,

sharing or use of information that is protected under 18

Pa.C.S. Ch. 91 (relating to criminal history record

information) and that the person lawfully obtains in

connection with an investigation or prosecution of a

potential or actual violation of section 301.

(2) Prevent the disclosure, dissemination, sharing or

use of protected information in accordance with section

303(a)(4).

Section 312. Jurisdiction and Attorney General as relator in

Federal false claims actions.

(a) Jurisdiction.--An action or petition under this act

shall be filed in a court of competent jurisdiction. The

following shall apply:

(1) An action or petition that is brought in the courts

of the Commonwealth shall be filed in Commonwealth Court.

(2) The Commonwealth Court shall have jurisdiction over

a legal claim asserted under the laws of the United States,

any state or any local government which arises from the same

transaction or occurrence as an action brought under this

act.

(b) Attorney General as relator.--To the extent permitted by

Federal law, the Attorney General may bring an action as a

relator under 31 U.S.C. § 3730 (relating to civil actions for

false claims) with respect to any act for which a person may be

held liable under 31 U.S.C. Ch. 37 (relating to claims).

Federal Government or any state or local government that is

named as a coplaintiff with the Commonwealth in an action

20210HB0042PN0021 - 43 -

brought under this act, a seal on action ordered by the court

under section 302(b) shall not preclude the Commonwealth or the

person bringing the action from serving the complaint, any other

pleadings or the written disclosure of substantially all

material evidence and information possessed by the person

bringing the action upon the law enforcement authorities that

are authorized under the law of that Federal, State or local

government to investigate and prosecute the actions on behalf of

the governments. A seal ordered under section 302(b) shall apply

to the law enforcement authorities so served to the same extend

as the seal applies to other parties in the action.

(d) Definition.--As used in this section, the term "state"

includes the District of Columbia, the Commonwealth of Puerto

Rico, the Virgin Islands and all insular territories of the

United States.

CHAPTER 5

COVID-19-RELATED LIABILITY

Section 501. Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Business or government services." A lawful activity

conducted by a trade, business, nonprofit organization or local

governmental unit that is permitted by the terms of the

proclamation of disaster emergency to hold itself out as open to

members of the public.

"Child care facility." Any of the following:

(1) A child care center as defined in section 1001 of

the act of June 13, 1967 (P.L.31, No.21), known as the Human

Services Code.

20210HB0042PN0021 - 44 -

(2) A children's institution as defined in section 901

of the Human Services Code.

(3) A family child care home as defined in section 1001

of the Human Services Code.

(4) An individual employed or contracted by an

individual or entity under paragraph (1), (2) or (3).

"Covered provider." Any of the following:

(1) A health care practitioner as defined in sections

103 and 802.1 of the act of July 19, 1979 (P.L.130, No.48),

known as the Health Care Facilities Act, or a health care

practitioner or provider, including a registered nurse,

licensed by a state or a political division of the United

States, including pursuant to a waiver of a law or a

regulation issued by the United States, the Commonwealth or a

local governmental authority.

(2) A health care facility as defined in the Health Care

Facilities Act or a temporary site operated by a health care

facility during the proclamation of disaster emergency,

including a facility authorized to operate pursuant to a

waiver of a law or a regulation issued by the United States,

the Commonwealth or a local governmental authority.

(3) A health care provider as defined in the Health Care

Facilities Act or other legal entity whose primary purpose is

the provision of medical care for a health care provider.

(4) A facility as defined in section 1001 of the Human

Services Code, or a parent organization of the facility.

(5) A business, institution of higher education,

facility or organization that provides a venue for the

provision of medical care.

(6) A licensed, certified, registered or authorized

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person providing emergency medical services as defined in 35

Pa.C.S. § 8103 (relating to definitions), including an EMS

vehicle operator.

(7) An EMS agency as defined in 35 Pa.C.S. § 8103,

including a parent organization of the EMS agency.

(8) A person engaged in nursing care as defined in 28

Pa. Code Ch. 201 (relating to applicability, definitions,

ownership and general operation of long-term care nursing

facilities), if the nursing care is in support of the

activities of daily living and other instrumental activities

of daily living as defined in 55 Pa. Code Chs. 2600 (relating

to personal care homes) and 2800 (relating to assisted living

residences), or services covered that nursing care providers

are obligated to deliver or arrange under their requirements

of licensure.

(9) A clinical laboratory certified under the Federal

Clinical Laboratory amendments in section 353 of the Public

Health Service Act (58 Stat. 682, 42 U.S.C. § 201 et seq.),

or licensed under the act of September 26, 1951 (P.L.1539,

No.389), known as The Clinical Laboratory Act.

(10) An individual employed or contracted by an

individual or entity under paragraph (1), (2), (3), (4), (5),

(6), (7), (8) or (9), who is involved in providing medical

care.

"Direct cost." The direct labor and direct material costs of

producing personal protective equipment, excluding any

manufacturing overhead costs.

"Institution of higher education." The term includes any of

the following:

(1) A community college operating under Article XIX-A of

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the act of March 10, 1949 (P.L.30, No.14), known as the

Public School Code of 1949.

(2) A university within the State System of Higher

Education.

(3) The Pennsylvania State University, the University of

Pittsburgh, Temple University, Lincoln University or any

other institution designated as State-related by the

Commonwealth.

(4) The Thaddeus Stevens College of Technology and The

Pennsylvania College of Technology.

(5) A college established under Article XIX-G of the

Public School Code of 1949.

(6) An institution of higher education located in and

incorporated or chartered by the Commonwealth and entitled to

confer degrees under 24 Pa.C.S. § 6505 (relating to power to

confer degrees) and as provided for by the standards and

qualifications prescribed by the State Board of Education

under 24 Pa.C.S. Ch. 65 (relating to private colleges,

universities and seminaries).

(7) A private school licensed under the act of December

15, 1986 (P.L.1585, No.174), known as the Private Licensed

Schools Act.

(8) A foreign corporation approved to operate an

educational enterprise under 22 Pa. Code Ch. 36 (relating to

foreign corporation standards).

"Local governmental unit." A municipality or local

authority.

"Personal protective equipment." A device, equipment,

substance or material recommended by the Centers for Disease

Control and Prevention, Food and Drug Administration,

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Environmental Protection Agency, Department of Homeland

Security, another Federal authority or the Department of Health

to prevent, limit or slow the spread of COVID-19, such as

respirators, masks, surgical apparel, gowns, gloves and other

apparel intended for a medical purpose. The term includes

sanitizers and disinfectants.

"Proclamation of disaster emergency." A proclamation of

disaster emergency issued by the Governor relating to COVID-19

and any renewal of the state of disaster emergency, such as the

proclamation of disaster emergency issued by the Governor on

March 6, 2020, published at 50 Pa.B. 1644 (March 21, 2020), and

renewed on June 3, 2020, and August 31, 2020.

"Public health directives." Orders or guidelines lawfully

issued by the Federal or State government regarding:

(1) The manufacturing or use of personal protective

equipment during the proclamation of disaster emergency.

(2) Treatment or testing of individuals with or

reasonably believed to have COVID-19.

(3) Steps necessary or recommended to prevent, limit or

slow the spread of COVID-19.

"School entity." A public school, including a charter school

or cyber charter school, private school, nonpublic school, pre-

kindergarten, intermediate unit, area career and technical

school, approved private school or institution of higher

education operating within the Commonwealth. The term includes

an individual employed by or contracted by a school entity.

Section 501.1. School and child care liability.

(a) Limited liability.--Notwithstanding any other provision

of law, a school entity or child care facility shall not be

civilly liable for damages or personal injury relating to an

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actual or alleged exposure to COVID-19, absent a showing, by

clear and convincing evidence, of gross negligence,

recklessness, willful misconduct or intentional infliction of

harm.

(b) Compliance with public health directives.--An act or

omission in compliance with, or in a good faith belief that the

act or omission is in compliance with, public health directives

shall not be considered gross negligence, recklessness, willful

misconduct or intentional infliction of harm.

Section 502. Personal protective equipment liability.

(a) Manufacturer, distributor, labeler and donor.--The

following apply:

(1) Notwithstanding any other provision of law, a person

that manufactures, distributes, labels or donates personal

protective equipment shall not be civilly liable for damages

or personal injury related to actual or alleged exposure to

COVID-19, in connection with the use of personal protective

equipment that, during the proclamation of disaster

emergency, is donated or sold at direct cost, to a charitable

organization, the Commonwealth, a local governmental unit or

covered provider, absent a showing by clear and convincing

evidence of recklessness, willful misconduct or intentional

infliction of harm.

(2) An act or omission in compliance with, or in a good

faith belief that the act or omission was in compliance with,

public health directives, shall not be considered

recklessness, willful misconduct or intentional infliction of

harm.

(b) Other manufacturers, distributors and labelers.--Except

as provided under subsection (a), the following apply:

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(1) Notwithstanding any other provision of law, a person

that manufactures, distributes or labels personal protective

equipment shall not be civilly liable for damages or personal

injury related to actual or alleged exposure to COVID-19 in

connection with the use of personal protective equipment

absent a showing, by clear and convincing evidence, of gross

negligence, recklessness, willful misconduct or intentional

infliction of harm if the person commenced manufacturing,

distributing or labeling:

(i) only in connection with a proclamation of

disaster emergency; or

(ii) to the same standards that it manufactured,

distributed or labeled the equipment before a

proclamation of disaster emergency, unless the equipment

is clearly labeled to indicate otherwise.

(2) An act or omission in compliance with, or in a good

faith belief that the act of omission was in compliance with,

public health directives shall not be considered gross

negligence, recklessness, willful misconduct or intentional

infliction of harm.

(1) Notwithstanding any other provision of law, a person

that used or employed personal protective equipment during

the proclamation of disaster emergency in compliance with

public health directives related to the personal protective

equipment shall not be civilly liable for damages or personal

injury related to use of the personal protective equipment

absent a showing, by clear and convincing evidence, of gross

negligence, recklessness, willful misconduct or intentional

infliction of harm.

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(2) An act or omission in compliance with, or in a good

faith belief that the act or omission was in compliance with,

public health directives, shall not be considered gross

negligence, recklessness, willful misconduct or intentional

infliction of harm.

Section 503. Business or government services liability.

(a) Limited liability.--Notwithstanding any other provision

of law, a person providing business or government services shall

not be civilly liable for damages or personal injury relating to

an actual or alleged exposure to COVID-19, absent a showing, by

clear and convincing evidence, of gross negligence,

recklessness, willful misconduct or intentional infliction of

harm.

(b) Compliance with public health directives.--An act or

omission in compliance with, or in a good faith belief that the

act or omission is in compliance with, public health directives,

shall not be considered gross negligence, recklessness, willful

misconduct or intentional infliction of harm.

Section 504. Covered provider liability.

(a) Limited liability.--Notwithstanding any other provision

of law, a covered provider shall not be civilly liable for

damages or personal injury relating to the following absent a

showing, by clear and convincing evidence, of gross negligence,

recklessness, willful misconduct or intentional infliction of

harm:

(1) the provision of treatment or testing for COVID-19

to patients that have been exposed to or whom a covered

provider reasonably believes may have been exposed to COVID-

19; or

(2) an act or omission proximately caused by any of the

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following:

(i) equipment, supplies or personnel shortages

caused by the demand for testing for or treatment of

COVID-19 and which was beyond the reasonable control of

the covered provider;

(ii) a number of patients in excess of the capacity

of a department or of a unit of a covered provider as a

direct result of the need to test for or treat COVID-19;

(iii) compliance with public health directives

regarding the testing for and treatment of COVID-19.

(b) Compliance with public health directives.--An act or

omission by a covered provider in compliance with, or in a good

faith belief that the act of omission was in compliance with,

public health directives, shall not be considered gross

negligence, recklessness, willful misconduct or intentional

infliction of harm.

Section 505. Application of chapter.

(a) Vicarious liability.--Vicarious liability shall not

attach to the employer of a person who is otherwise immune under

this chapter or an executive order.

(b) Public health directives.--In determining civil

liability under this chapter, a court shall:

(1) For a manufacturer, distributor, labeler or donor,

consider public health directives that were in effect at the

time, either of the manufacture, distribution, labeling or

sale of the personal protective equipment.

(2) For a person providing business or government

services, user of personal protective equipment, school

entity or child care facility, consider public health

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directives that were in effect at the time of an alleged act

or omission occurred.

(3) For a covered provider, consider public health

directives that were in effect at the time an alleged act or

omission occurred.

apply to acts or omissions during a proclamation of disaster

emergency.

Section 506. Construction of chapter.

This chapter shall not:

(1) Be construed to create a new cause of action or

expand a civil or criminal liability otherwise imposed, limit

a defense or affect the applicability of a law that affords

greater protections to defendants than are provided under

this chapter.

(2) Prevent an individual from filing a claim for

Workers' Compensation or receiving benefits under the act of

June 2, 1915 (P.L.736, No.338), known as the Workers'

Compensation Act, if otherwise available.

CHAPTER 7

MISCELLANEOUS PROVISIONS

Section 701. Nonseverability.

The provisions of this act are nonseverable. If any provision

of this act or its application to any person or circumstance is

held invalid, the remaining provisions or applications of this

act are void.

Section 702. Expiration.

(a) General rule.--Subject to subsection (b), this act shall

expire 20 years after the effective date of this section.

(b) Exception.--The expiration of this act shall not apply

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to or otherwise affect the following:

(1) A violation of this act that occurred before the

expiration of this act.

(2) An investigation of an alleged violation of this act

that commenced, but was not completed, before the expiration

of this act.

Section 703. Effective date.

This act shall take effect as follows:

(1) The following shall take effect immediately:

(i) This section.

(ii) Chapter 5.

(2) The remainder of this act shall take effect in 120

days.

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