By Russell Paul
The New Hampshire False Claims Act (“New Hampshire FCA”) was first enacted in 2004. It authorizes whistleblowers with knowledge of fraudulent efforts by persons or businesses to obtain New Hampshire state funds or to avoid an obligation to pay New Hampshire state funds to file suit on behalf of the state of New Hampshire. See N.H. Rev. Stat. Ann. §§ 167:58 to 167-61-e. The New Hampshire FCA applies only to false claims presented under the state’s Medicaid program
As a result of recent amendments to the New Hampshire FCA, an action for recovery of state funds under the Act may only proceed against a defendant if the defendant (1) has its principal place of business in NH or (2) received at least 10% of its total health insurance reimbursement from the Medicaid program in the year prior to the filing of the lawsuit.
New Hampshire False Claims Act Liability
The New Hampshire FCA imposes liability on any person who:
- Knowingly presents, or causes to be presented, to an officer or employee of the New Hampshire Department of Health and Human Services (“Department”), a false or fraudulent claim for payment or approval.
- Knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Department.
- Conspires to defraud the Department by getting a false or fraudulent claim allowed or paid.
- Has possession, custody, or control of property or money used, or to be used, by the Department and, intending to defraud the Department or willfully to conceal the property, delivers, or causes to be delivered, less property than the amount for which the person receives a certificate or receipt.
- Knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Department.
- Is a beneficiary of an inadvertent submission of a false claim to the Department, who subsequently discovers the falsity of the claim, and fails to disclose the false claim to the Department within a reasonable time after discovery of the false claim.
- This provision makes the New Hampshire FCA broader in scope than the federal FCA, although the New Hampshire FCAis only triggered when any one or more claims submitted is $5,000 or more.
Such violators are liable to the state for a civil penalty of $5,000 – $10,000 for each specific fraudulent submission to the state, plus 3 times the amount of damages that the state sustains because of the act of the violator.
Whistleblower Awards and Protection Under the New Hampshire False Claims Act
In the case of a successful action, the whistleblower is entitled to 15 and 30 percent of proceeds or settlement of the claim. If the state intervenes, a whistleblower in a successful New Hampshire FCA case may recover between 15 and 25 percent of amounts recovered.
If the state does not intervene and the whistleblower successfully prosecutes the case on his own, he will receive between 25 and 30 percent of the proceeds of the settlement. The court may reduce the value of the award if the whistleblower planned and initiated the fraud. In addition, the whistleblower shall receive an amount for reasonable expenses incurred during the case, attorney’s fees, and costs of the case.
The New Hampshire FCA also protects whistleblowers against retaliation for engaging in protected activity. New Hampshire whistleblowers enjoy the same level of protection against retaliation as they would under the federal FCA
Relators must file their complaint within ten years of the date on which the violation occurred.
Previous New Hampshire False Claims Act Settlements
In January 2013, New Hampshire Attorney General Michael A. Delaney announced that the state would receive $54,281.76 from Greater Nashua Mental Health Center over allegations that the healthcare provider improperly billed the state’s Medicaid program. A state investigation revealed that the company submitted fraudulent claims in the form of improper billing codes to the state from 2008 to 2012.
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