In light of recent changes to the federal False Claims Act (FCA) resulting from the passage of the Fraud Enforcement and Recovery Act (FERA) (Pub. L. No. 111-21) and the Patient Protection and Affordable Care Act (Pub. L. No. 111-148), Sen. Charles Grassley (R-Iowa) has asked the U.S. Departments of Justice (DOJ) and Health and Human Services (HHS) to examine state FCAs to ensure compliance with recent modifications to the federal FCA. Section 6031 of the Deficit Reduction Act of 2005 provides a financial incentive to a state that enacts an FCA which "contains provisions that are at least as effective in rewarding and facilitating qui tam [whistleblower] actions for false or fraudulent claims as those described in the federal FCA." Currently fourteen state FCAs have been deemed compliant with section 6031 and eligible for the incentive.
Sen. Grassley, in an April 28, 2010, letter to the DOJ and HHS, requests that they (1) conduct a thorough review of state FCAs to determine if they remain in compliance with the requirements of section 6031 including the requirement to be "as effective as" the federal FCA as revised; (2) review the August 21, 2006, guidance to states that was published in the Federal Register to determine if the changes to the federal FCA impact the advice provided by the DOJ and HHS in their guidance to the states; (3) examine whether proposed state laws that include a "first-to-file" bar, would preclude qui tam relators from filing suit under a state FCA if a similar suit is filed under another state's FCA and would be considered "at least as effective in rewarding and facilitating qui tam actions" under section 6031. Sen. Grassley admittedly is interested in the examination of the "first to file" bar provisions, as the Senator has stated that the provisions "severely limit qui tam actions brought by relators in States where the language is adopted."