New Hampshire False Claims Act
First enacted in 2004, the New Hampshire False Claims Act authorizes whistleblowers with knowledge of fraudulent efforts by persons or businesses to obtain state funds or to avoid an obligation to pay state funds to file suit on behalf of the state. See N.H. Rev. Stat. Ann. §§ 167:58 to 167-61-e. Under § 167:61-b.I of the Act, an individual or entity faces civil liability for knowingly presenting or causing to be presented a false or fraudulent claim, making or using false records or statements, or conspiracy to commit any of these acts. Aside from “knowingly” submitting false claims or causing them to be submitted, the New Hampshire False Claims Act also imposes liability on persons or entities that are beneficiaries of an inadvertent submission of a false claim to the state, who subsequently discovers the falsity of such claim, and who fails to disclose that claim to New Hampshire within a reasonable time. This provision makes the state act more broad in scope than the federal FCA, although the state FCA is only triggered when any one or more claims submitted is $5,000 or more.
Also unlike the federal FCA, the New Hampshire False Claims Act defines “fraud” in a different way. According to the Act, fraud is the “intentional deception or misrepresentation made by a person with the knowledge that the deception could result in some unamortized benefit to himself or some other person.” It also includes any act that would be considered fraud under New Hampshire’s criminal code.
As a result of recent amendments to the New Hampshire False Claims Act, an action for recovery of state funds under the Act may only proceed against a defendant if (1) their principal place of business is within the state or (2) reimbursement from the New Hampshire Medicaid program accounts for at least 10 percent of total reimbursement from all state medical assistance programs during the 12-month period preceding the action.
If a person or business violates the New Hampshire False Claims Act, they can expect to pay civil penalties up to treble damages and a fine ranging between $5,000 and $10,000 for each specific fraudulent submission to the state. Whistleblowers can initiate a claim as a result of the state FCA’s qui tam provision, from which they can also receive an award of between 15% and 30%, depending on whether New Hampshire assumes control of the case. Finally, whistleblowers enjoy the same level of protection against retaliation as they would under the federal FCA, and they can keep their original source status if they make a disclosure with the state in a timely manner.
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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