As Introduced
135th General Assembly
Regular Session H. B. No. 707
2023-2024
Representative Forhan
A BILL
To enact sections 2747.01, 2747.02, 2747.03, 1
2747.04, 2747.05, 2747.06, 2747.07, 2747.08, 2
2747.09, and 2747.10 of the Revised Code to 3
enact the Ohio False Claims and Whistleblower 4
Protection Act. 5
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2747.01, 2747.02, 2747.03, 6
2747.04, 2747.05, 2747.06, 2747.07, 2747.08, 2747.09, and 7
2747.10 of the Revised Code be enacted to read as follows: 8
Sec. 2747.01. As used in this chapter: 9
(A) "Claim" includes any request or demand, whether under 10
a contract or otherwise, for money or property that is made to a 11
contractor, grantee, or other recipient if the state provides 12
any portion of the money or property that is requested or 13
demanded or if the state will reimburse the contractor, grantee, 14
or other recipient for any portion of the money or property that 15
is requested or demanded. 16
(B) "Documentary material" includes the original or any 17
copy of any book, record, report, memorandum, paper, 18
communication, tabulation, chart, or other document, or data 19
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compilations stored in or accessible through computer or other 20
information retrieval systems, together with instructions and 21
all other materials necessary to use or interpret the data 22
compilations, and any product of discovery. 23
(C) "Knowing" and "knowingly" mean that a person, with 24
respect to information and with or without a specific intent to 25
defraud, meets at least one of the following criteria: 26
(1) The person has actual knowledge of the information. 27
(2) The person acts in deliberate ignorance of the truth 28
or falsity of the information. 29
(3) The person acts in reckless disregard of the truth or 30
falsity of the information. 31
(D) "Product of discovery" includes all of the following: 32
(1) The original or duplicate of any deposition, 33
interrogatory, document, thing, result of the inspection of land 34
or other property, examination, or admission, that is obtained 35
by any method of discovery in any judicial or administrative 36
proceeding of an adversarial nature; 37
(2) Any digest, analysis, selection, compilation, or 38
derivation of any item listed in division (D)(1) of this 39
section; 40
(3) Any index or other manner of access to any item listed 41
in division (D)(1) of this section. 42
Sec. 2747.02. (A) No person shall do any of the following: 43
(1) Knowingly present, or cause to be presented, to an 44
officer or employee of the state or to the state a false or 45
misleading claim for payment or approval; 46
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(2) Knowingly make, use, or cause to be made or used a 47
false record or statement to get the state to pay or approve a 48
false or misleading claim; 49
(3) Conspire to defraud the state by getting a false or 50
fraudulent claim allowed or paid; 51
(4) Have possession, custody, or control of property or 52
money used or to be used by the state and, with intent to 53
conceal the property or money, deliver or cause to be delivered 54
less property or money than the amount for which the person 55
receives a certificate or receipt; 56
(5) With intent to defraud, make or deliver a document 57
that certifies receipt of property used by the state or to be 58
used by the state and that the person is authorized to make or 59
deliver if the person does not know that the information on the 60
document is true; 61
(6) Knowingly buy, or receive as a pledge of an obligation 62
or debt, public property from an officer or employee of the 63
state who lawfully may not sell or pledge the property; 64
(7) Knowingly make, use, or cause to be made or used a 65
false record or statement to conceal, avoid, or decrease an 66
obligation to pay or transmit money or property to the state; 67
(8) Knowingly solicit, receive, offer to pay, or pay a 68
kickback, bribe, rebate, or any other form of remuneration, 69
directly or indirectly, overtly or covertly, in cash or in kind, 70
for referring an individual to a health care provider or managed 71
care organization or to a third person for the purpose of 72
referral of the individual by the third person to a health care 73
provider or managed care organization for furnishing the 74
individual with goods or services that may be paid for, in whole 75
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or in part, by the medicaid program or by the bureau of workers' 76
compensation under Chapters 4121. or 4123. of the Revised Code 77
and rules adopted pursuant to those chapters. 78
(B)(1) Except as provided in division (B)(2) of this 79
section, whoever violates division (A) of this section is liable 80
to the state for a civil penalty of not less than five thousand 81
dollars and not more than ten thousand dollars for each false or 82
misleading claim, plus three times the amount of damages that 83
the state sustains because of the violation. 84
(2) Whoever violates division (A) of this section is 85
liable to the state for a civil penalty of not less than two 86
times the amount of damages that the state sustains because of 87
the violation, plus the costs of a civil action brought to 88
recover any such penalty or damages, if the court finds all of 89
the following: 90
(a) The person committing the violation furnished the 91
attorney general with all information known to the person about 92
the violation within thirty days after the date on which the 93
person first obtained the information. 94
(b) The person fully cooperated with any state 95
investigation of the violation. 96
(c) At the time the person furnished the attorney general 97
with the information about the violation, no criminal 98
prosecution, civil action, or administrative action had been 99
commenced with respect to the violation, and the person did not 100
have actual knowledge of the existence of an investigation into 101
the violation. 102
(C) Any information furnished as described in division (B) 103
(2)(a), (b), or (c) of this section is not a public record under 104
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and is exempt from disclosure under section 149.43 of the 105
Revised Code. 106
(D) Commencement of an action or investigation under this 107
chapter does not preclude either of the following: 108
(1) Commencement of an action under section 5164.35 of the 109
Revised Code with regard to claims, payments, reports, or 110
documents to which section 5164.35 of the Revised Code applies; 111
(2) Commencement of any other action otherwise authorized 112
by law. 113
Sec. 2747.03. (A) The attorney general diligently shall 114
investigate violations of section 2747.02 of the Revised Code. 115
If the attorney general finds that a person has violated or is 116
violating that section, the attorney general may bring a civil 117
action under this section against the person. 118
(B)(1) A person may bring a civil action for a violation 119
of section 2747.02 of the Revised Code on behalf of the person 120
and on behalf of the state. A person may not bring an action 121
under this division against the state or a political 122
subdivision, any department, board, office, commission, agency, 123
institution, or other instrumentality of the state or a 124
political subdivision, or any officer or employee of the state 125
or a political subdivision. A person shall bring the action in 126
the name of the state. 127
(2) A copy of the complaint and written disclosure of 128
substantially all material evidence and information the person 129
possesses shall be served on the attorney general pursuant to 130
Civil Rule 4.2(J). The complaint shall be filed in camera, shall 131
remain under seal for at least sixty days, and shall not be 132
served on the defendant until the court so orders. The state may 133
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elect to intervene and proceed with the action within sixty days 134
after it receives both the complaint and the material evidence 135
and information. 136
(3) The state, for good cause shown, may file motions with 137
the court requesting extensions of the time during which the 138
complaint remains under seal, and the state may intervene under 139
division (B)(2) of this section. The motion may be supported by 140
affidavits or other submissions in camera. The defendant is not 141
required to respond to any complaint filed under this section 142
until twenty-eight days after the complaint is unsealed and 143
served on the defendant pursuant to Civil Rule 4. 144
(4) Before the expiration of the sixty-day period under 145
division (B)(2) of this section or any extensions obtained under 146
division (B)(3) of this section, the state shall either proceed 147
with the action or notify the court that it declines to proceed 148
with the action. If the state proceeds with the action, the 149
state shall conduct the action. If the state declines to proceed 150
with the action, the person bringing the action has the right to 151
conduct the action. 152
(5) When a person brings an action under division (B)(1) 153
of this section, no person other than the state may intervene or 154
bring a related action based on the facts underlying that 155
pending action. 156
(C)(1) If the state proceeds with an action under division 157
(B) of this section, it has the primary responsibility for 158
prosecuting the action and is not bound by an action of the 159
person bringing the action. The person bringing the action has 160
the right to continue as a party to the action, subject to the 161
limitations set forth in divisions (C)(2) to (4) of this 162
section. 163
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(2) The state may dismiss an action brought under division 164
(B) of this section notwithstanding the objections of the person 165
initiating the action if the state notifies the person of the 166
filing of the motion to dismiss and the court has provided the 167
person with an opportunity for a hearing on the motion. 168
(3) The state may settle an action brought under division 169
(B) of this section with the defendant notwithstanding the 170
objections of the person initiating the action if the court 171
determines, after a hearing, that the proposed settlement is 172
fair, adequate, and reasonable under all the circumstances. On a 173
showing of good cause, the court may hold the hearing in camera. 174
(4) On a showing by the state that unrestricted 175
participation during the course of the litigation by the person 176
initiating the action would interfere with or unduly delay the 177
state's prosecution of the case or would be repetitious, 178
irrelevant, or for purposes of harassment, the court, in its 179
discretion, may impose limitations on the person's 180
participation, including all of the following: 181
(a) Limiting the number of witnesses the person may call; 182
(b) Limiting the length of the testimony of witnesses; 183
(c) Limiting the person's cross-examination of witnesses; 184
(d) Otherwise limiting the participation by the person in 185
the litigation. 186
(5) On a showing by the defendant that unrestricted 187
participation during the course of the litigation by the person 188
initiating an action under division (B) of this section would be 189
for purposes of harassment or would cause the defendant undue 190
burden or unnecessary expense, the court may limit participation 191
by the person initiating the action in the litigation. 192
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(D) If the state elects not to proceed with an action 193
brought by a person under division (B) of this section, the 194
person has the right to conduct the action. If the state so 195
requests, it shall be served with copies of all pleadings filed 196
in the action and shall be supplied with copies of all 197
deposition transcripts at the state's expense. When the person 198
proceeds with the action, the court, without limiting the status 199
and rights of the person initiating the action, may nevertheless 200
permit the state to intervene at a later date on a showing of 201
good cause. 202
(E) Whether or not the state proceeds with the action, on 203
a showing by the state that certain discovery by the person 204
initiating the action would interfere with the state's 205
investigation or prosecution of a criminal or civil matter 206
arising out of the same facts, the court may stay that discovery 207
for a period of not more than sixty days. The showing shall be 208
conducted in camera. The court may extend the sixty-day period 209
on a further showing in camera that the state has pursued the 210
criminal or civil investigation or proceedings with reasonable 211
diligence and any proposed discovery in the civil action will 212
interfere with the ongoing criminal or civil investigation or 213
proceedings. 214
(F) The state may elect to pursue its claim through any 215
available means other than an action brought under division (B) 216
of this section, including an administrative proceeding to 217
determine a civil monetary penalty. If an alternate remedy is 218
pursued in another proceeding, the person initiating the action 219
has the same rights in that proceeding as the person would have 220
had if the action had continued under this section