LRB-4890/3
SWB:ahe
2017 - 2018 LEGISLATURE
March 15, 2018 - Introduced by Representatives Subeck, Kolste, Brostoff, Hebl
and Sargent, cosponsored by Senator Risser. Referred to Committee on
Health.
AB1021,1,7 1An Act to renumber and amend 49.485; to amend 165.08, 801.02 (1), 803.09
2(1), 803.09 (2), 804.01 (2) (intro.) and 805.04 (1); and to create 20.9315, 49.485
3(1), 165.25 (11m), 805.04 (2p) and 893.9815 of the statutes; relating to:
4restoring private individual authority to bring a qui tam claim against a person
5for making a false claim for medical assistance, actions by the attorney general
6against a person for making a false claim for medical assistance, and providing
7a penalty.
Analysis by the Legislative Reference Bureau
This bill restores a private individual's authority to bring a qui tam claim
against a person who makes a false claim for medical assistance, which was
eliminated in 2015 Wisconsin Act 55. A qui tam claim, as it relates to the Medical
Assistance program under the bill, is a claim initiated by a private individual on his
or her own behalf and on behalf of the state against a person who makes a false claim
for medical assistance. The bill provides, as did the law before 2015 Wisconsin Act
55
took effect, that, of moneys recovered as a result of a qui tam claim, a private
individual may be awarded up to 30 percent of the amount recovered, depending
upon the extent of the individual's contribution to the prosecution of the action. The
individual may also be entitled to reasonable expenses incurred in bringing the
action, as well as attorney fees. This bill also includes additional changes not

included in the prior law to conform state law to the federal False Claims Act,
including expanding provisions to facilitate qui tam actions and modifying the bases
for liability to parallel the liability provisions under the federal False Claims Act.
In addition to qui tam claims, the Department of Justice has independent authority
to bring a claim against a person for making a false claim for medical assistance. This
bill modifies provisions relating to DOJ's authority to parallel the liability and
penalty standards relating to qui tam claims, specifically, applying the definition of
the term “claim” and the forfeiture amounts provided under the federal False Claims
Act.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB1021,1 1Section 1. 20.9315 of the statutes is created to read:
AB1021,2,3 220.9315 False claims for medical assistance; actions by or on behalf of
3state.
(1) In this section:
AB1021,2,44 (b) “Claim” has the meaning given in 31 USC 3729 (b) (2).
AB1021,2,55 (c) “Employer" includes all agencies and authorities.
AB1021,2,96 (d) “Knowingly" means, with respect to information, having actual knowledge
7of the information, acting in deliberate ignorance of the truth or falsity of the
8information, or acting in reckless disregard of the truth or falsity of the information.
9“Knowingly" does not mean specifically intending to defraud.
AB1021,2,1110 (de) “Material” means having a natural tendency to influence, or be capable of
11influencing, the payment or receipt of money or property.
AB1021,2,1212 (dm) “Medical assistance" has the meaning given under s. 49.43 (8).
AB1021,2,1313 (dr) “Obligation” has the meaning given in 31 USC 3729 (b) (3).
AB1021,2,1414 (dt) “Original source” has the meaning given in 31 USC 3730 (e) (4) (B).
AB1021,2,1715 (e) “Proceeds" includes damages, civil penalties, surcharges, payments for costs
16of compliance, and any other economic benefit realized by this state as a result of an
17action or settlement of a claim.
AB1021,3,1
1(f) “State public official" has the meaning given in s. 19.42 (14).
AB1021,3,6 2(2) Except as provided in sub. (3), any person who does any of the following is
3liable to this state for 3 times the amount of the damages that were sustained by the
4state or would have been sustained by the state,whichever is greater, because of the
5actions of the person, and shall forfeit, for each violation, an amount within the range
6specified under 31 USC 3729 (a):
AB1021,3,87 (a) Knowingly presents or causes to be presented a false or fraudulent claim
8for medical assistance.
AB1021,3,109 (b) Knowingly makes, uses, or causes to be made or used, a false record or
10statement material to a false or fraudulent claim for medical assistance.
AB1021,3,1511 (dg) Knowingly makes, uses, or causes to be made or used, a false record or
12statement material to an obligation to pay or transmit money or property to the
13Medical Assistance program, or knowingly conceals or knowingly and improperly
14avoids or decreases an obligation to pay or transmit money or property to the Medical
15Assistance program.
AB1021,3,1616 (dr) Conspires to commit a violation under par. (a), (b), or (dg).
AB1021,3,20 17(3) The court may assess against a person who violates sub. (2) not less than
182 nor more than 3 times the amount of the damages sustained by the state because
19of the acts of the person, and shall not assess any forfeiture, if the court finds all of
20the following:
AB1021,3,2321 (a) The person who commits the acts furnished the attorney general with all
22information known to the person about the acts within 30 days after the date on
23which the person obtained the information.
AB1021,3,2424 (b) The person fully cooperated with any investigation of the acts by this state.
AB1021,4,4
1(c) At the time that the person furnished the attorney general with information
2concerning the acts, no criminal prosecution or civil or administrative enforcement
3action had been commenced with respect to any such act, and the person did not have
4actual knowledge of the existence of any investigation into any such act.
AB1021,4,7 5(5) (a) Except as provided in subs. (10) and (12), any person may bring a civil
6action as a qui tam plaintiff against a person who commits an act in violation of sub.
7(2) for the person and the state in the name of the state.
AB1021,4,158 (b) The plaintiff shall serve upon the attorney general a copy of the complaint
9and documents disclosing substantially all material evidence and information that
10the person possesses. The plaintiff shall file a copy of the complaint with the court
11for inspection in camera. Except as provided in par. (c), the complaint shall remain
12under seal for a period of 60 days from the date of filing, and shall not be served upon
13the defendant until the court so orders. Within 60 days from the date of service upon
14the attorney general of the complaint, evidence, and information under this
15paragraph, the attorney general may intervene in the action.
AB1021,4,2016 (bm) Any complaint filed by the state in intervention, whether filed separately
17or as an amendment to the qui tam plaintiff's complaint, shall relate back to the filing
18date of the qui tam plaintiff's complaint, to the extent that the state's claim arises
19out of the conduct, transactions, or occurrences set forth, or attempted to be set forth,
20in the qui tam plaintiff's complaint.
AB1021,4,2321 (c) The attorney general may, for good cause shown, move the court for one or
22more extensions of the period during which a complaint in an action under this
23subsection remains under seal.
AB1021,4,2524 (d) Before the expiration of the period during which the complaint remains
25under seal, the attorney general shall do one of the following:
AB1021,5,2
11. Proceed with the action or an alternate remedy under sub. (10), in which case
2the action or proceeding under sub. (10) shall be prosecuted by the state.
AB1021,5,43 2. Notify the court that he or she declines to proceed with the action, in which
4case the person bringing the action may proceed with the action.
AB1021,5,75 (e) If a person brings a valid action under this subsection, no person other than
6the state may intervene or bring a related action while the original action is pending
7based upon the same facts underlying the pending action.
AB1021,5,108 (f) In any action or other proceeding under sub. (10) brought under this
9subsection, the plaintiff is required to prove all essential elements of the cause of
10action or complaint, including damages, by a preponderance of the evidence.
AB1021,5,14 11(6) If the state proceeds with an action under sub. (5) or an alternate remedy
12under sub. (10), the state has primary responsibility for prosecuting the action or
13proceeding under sub. (10). The state is not bound by any act of the person bringing
14the action, but that person has the right to continue as a party to the action.
AB1021,5,22 15(7) (b) With the approval of the governor, the attorney general may compromise
16and settle an action under sub. (5) or an administrative proceeding under sub. (10)
17to which the state is a party, notwithstanding objection of the person bringing the
18action, if the court determines, after affording to the person bringing the action the
19right to a hearing at which the person is afforded the opportunity to present evidence
20in opposition to the proposed settlement, that the proposed settlement is fair,
21adequate, and reasonable considering the relevant circumstances pertaining to the
22violation.
AB1021,6,323 (c) Upon a showing by the state that unrestricted participation in the
24prosecution of an action under sub. (5) or an alternate proceeding to which the state
25is a party by the person bringing the action would interfere with or unduly delay the

1prosecution of the action or proceeding, or would result in consideration of
2repetitious or irrelevant evidence or evidence presented for purposes of harassment,
3the court may limit the person's participation in the prosecution, such as:
AB1021,6,44 1. Limiting the number of witnesses that the person may call.
AB1021,6,55 2. Limiting the length of the testimony of the witnesses.
AB1021,6,66 3. Limiting the cross-examination of witnesses by the person.
AB1021,6,87 4. Otherwise limiting the participation by the person in the prosecution of the
8action or proceeding.
AB1021,6,139 (d) Upon showing by a defendant that unrestricted participation in the
10prosecution of an action under sub. (5) or alternate proceeding under sub. (10) to
11which the state is a party by the person bringing the action would result in
12harassment or would cause the defendant undue burden or unnecessary expense, the
13court may limit the person's participation in the prosecution.
AB1021,6,20 14(8) Except as provided in sub. (7), if the state elects not to participate in an
15action filed under sub. (5), the person bringing the action may prosecute the action.
16If the attorney general so requests, the attorney general shall, at the state's expense,
17be served with copies of all pleadings and deposition transcripts in the action. If the
18person bringing the action initiates prosecution of the action, the court, without
19limiting the status and rights of that person, may permit the state to intervene at a
20later date upon showing by the state of good cause for the proposed intervention.
AB1021,7,5 21(9) Whether or not the state participates in an action under sub. (5), upon
22showing in camera by the attorney general that discovery by the person bringing the
23action would interfere with the state's ongoing investigation or prosecution of a
24criminal or civil matter arising out of the same facts as the facts upon which the
25action is based, the court may stay such discovery in whole or in part for a period of

1not more than 60 days. The court may extend the period of any such stay upon
2further showing in camera by the attorney general that the state has pursued the
3criminal or civil investigation of the matter with reasonable diligence and the
4proposed discovery in the action brought under sub. (5) will interfere with the
5ongoing criminal or civil investigation or prosecution.
AB1021,7,17 6(10) The attorney general may pursue a claim relating to an alleged violation
7of sub. (2) through an alternate remedy available to the state or any state agency,
8including an administrative proceeding to assess a civil forfeiture. If the attorney
9general elects any such alternate remedy, the attorney general shall serve timely
10notice of his or her election upon the person bringing the action under sub. (5), and
11that person has the same rights in the alternate venue as the person would have had
12if the action had continued under sub. (5). Any finding of fact or conclusion of law
13made by a court or by a state agency in the alternate venue that has become final is
14conclusive upon all parties named in an action under sub. (5). For purposes of this
15subsection, a finding or conclusion is final if it has been finally determined on appeal,
16if all time for filing an appeal or petition for review with respect to the finding or
17conclusion has expired, or if the finding or conclusion is not subject to judicial review.
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