Colorado False Claims Act

Does Colorado Have a False Claims Act?

Yes, Colorado has a False Claims Act (CFCA). The CFCA was signed into law on June 7, 2022, by Governor Jared Polis and took effect on August 10, 2022.

  1. Purpose: The CFCA is designed to hold accountable individuals and entities that defraud programs funded by Colorado taxpayers. It applies to a wide range of publicly-funded programs in the state.

  2. Qui Tam Provision: The CFCA includes a qui tam provision that allows private individuals, known as “relators,” to file lawsuits on behalf of the state if they have knowledge of fraud against the government. If the lawsuit is successful, the whistleblower can receive a portion of the recovered funds, potentially up to 30%.

  3. Whistleblower Protections: The CFCA provides protections for whistleblowers against retaliation. This includes protecting individuals who conduct or assist with investigations, provide information to counsel or state representatives, or file an action under the CFCA. The law explicitly defines these “lawful acts” to ensure clarity about the protections offered.

  4. Enforcement and Incentives: The CFCA created the “False Claims Recovery Cash Fund,” where proceeds from CFCA actions are deposited. This fund is used by the Colorado Attorney General’s office to cover the costs of investigating and prosecuting false claims, incentivizing the enforcement of the act.

These provisions make the CFCA a powerful tool for detecting and preventing fraud against state-funded programs, aligning closely with the federal False Claims Act while addressing state-specific needs and legal contexts.

Yes, the Colorado False Claims Act (CFCA) includes a qui tam provision. This provision allows private individuals, known as “relators,” to file lawsuits on behalf of the state if they have knowledge of fraud against government-funded programs. If the lawsuit is successful, the relator can receive a portion of the recovered funds, which can be as much as 30%.

Yes, the Colorado False Claims Act (CFCA) includes an anti-retaliation provision. This provision protects whistleblowers from retaliatory actions by their employers for participating in activities related to investigating, reporting, or filing actions concerning false claims. Specifically, the CFCA defines “lawful acts” that are protected from retaliation, such as conducting or assisting with investigations, meeting with counsel or state representatives, providing confidential information, and filing an action under the CFCA.

The Colorado False Claims Act (CFCA) and the Federal False Claims Act (FCA) share many similarities but also have distinct differences. Here are the key differences:

SCOPE AND APPLICABILITY:

  • Federal FCA: Applies to fraudulent claims made against federal government programs and funds.
  • Colorado CFCA: Applies to fraudulent claims made against state-funded programs in Colorado. It also has specific provisions that extend to local government entities within the state.

QUI TAM PROVISIONS:

  • Federal FCA: Allows private individuals (relators) to file lawsuits on behalf of the federal government. Successful relators can receive between 15% to 30% of the recovered amount.
  • Colorado CFCA: Similarly allows relators to file suits on behalf of the state and receive up to 30% of the recovered funds, but the specifics of the procedures and protections can vary based on state law.

ANTI-RETALIATION PROVISIONS:

  • Federal FCA: Protects whistleblowers from retaliation for lawful acts done in furtherance of an action under the FCA.
  • Colorado CFCA: Also includes robust anti-retaliation protections but provides a more detailed definition of “lawful acts,” which includes assisting in investigations, meeting with counsel, and providing information to state representatives.

FINANCIAL INCENTIVES AND FUNDS:

  • Federal FCA: The recoveries are distributed to the federal government, with a portion allocated to the relator.
  • Colorado CFCA: Establishes a “False Claims Recovery Cash Fund,” where proceeds from CFCA actions are deposited. This fund is used to cover the costs of investigating and prosecuting false claims in Colorado, and the Attorney General’s office can decide the allocation of these funds, including potentially to political subdivisions.

LEGAL DEFINITIONS AND PROTECTIONS:

  • Federal FCA: Definitions and protections under the FCA have been developed through extensive case law.
  • Colorado CFCA: Codifies specific definitions and protections within the statute itself, providing clearer guidance on what actions are protected from retaliation and ensuring more immediate clarity without needing extensive judicial interpretation.

ENFORCEMENT:

  • Federal FCA: Enforced by the U.S. Department of Justice.
  • Colorado CFCA: Enforced by the Colorado Attorney General’s office, which is incentivized to pursue claims through the creation of the False Claims Recovery Cash Fund.

These differences highlight how Colorado has tailored its False Claims Act to address state-specific needs while drawing from the successful framework of the federal law.

Yes, the Colorado False Claims Act (CFCA) does provide rewards to whistleblowers. Similar to the federal False Claims Act, the CFCA offers financial incentives to individuals who successfully expose fraud. The reward amounts can vary: 

If the state intervenes in the case, whistleblowers may recover between 15 and 25 percent of any proceeds from the action or settlement.

If the state decides not to intervene, whistleblowers may recover between 25 and 30 percent of the proceeds.

These provisions are designed to encourage individuals to come forward with information about fraudulent activities against the state. It’s important to note that these percentages are not guaranteed and the actual reward can depend on various factors, including the quality of the case and the information provided.

COLO. REV. STAT. § 24-31-1203

Section 24-31-1203 – False claims – civil liability for certain acts – penalty – exception

(1) Subject to subsection (2) of this section and except as otherwise provided in subsection (5) of this section, a person is liable to the state for a civil penalty of not less than eleven thousand eight hundred dollars and not more than twenty-three thousand six hundred dollars per violation, plus three times the amount of damages that the state sustains because of the act of that person, if that person:

 

(a) Knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;
(b) Knowingly makes, uses, or causes to be made or used a false record or statement material to a false or fraudulent claim;
(c) Has possession, custody, or control of property or money used, or to be used, by the state or political subdivision and knowingly delivers, or causes to be delivered, less than all of the money or property;
(d) Authorizes the making or delivery of a document certifying receipt of property used, or to be used, by the state or political subdivision and, with the intent to defraud the state or political subdivision, makes or delivers the receipt without completely knowing that the information on the receipt is true;
(e) Knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the state or political subdivision who lawfully may not sell or pledge the property;
(f) Knowingly makes, uses, or causes to be made or used a false record or statement material to an obligation to pay or transmit money or property to the state or political subdivision, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the state or political subdivision;
(g) Knowingly makes, uses, or causes to be made or used, a false record or statement resulting in the underpayment of premiums owed to the unemployment compensation fund established in section 8-77-101 or in the payment of unemployment insurance benefits of more than fifteen thousand dollars in a calendar year; or
(h) Conspires to commit a violation of subsections (1)(a) to (1)(g) of this section.
(2)

 

(a) Notwithstanding the amount of damages authorized in subsection (1) of this section, for a person who violates subsection (1) of this section, the court may assess reduced damages and penalties as described in subsection (2)(b) or (2)(c) of this section if the court finds that:

 

(I) The person who committed the violation furnished to the officials of the state or political subdivision responsible for investigating false claims violations all information about the violation known to the person and furnished said information within thirty days after the date on which the person first learned of a potential violation;
(II) At the time the person furnished the information about the violation to the officials of the state or political subdivision, the person did not have actual or constructive knowledge of the existence of an investigation into the violation; and
(III) The person fully cooperated with any investigation of the violation by the state.
(b) If a person described in subsection (2)(a) of this section furnished information about the violation to the officials of the state or political subdivision before a criminal prosecution, civil action, or administrative action was commenced with respect to the violation, the court shall assess one and one-half the amount of actual damages resulting from the false claim, including interest from the date of the fraud to the date of full repayment of all damages, that the state or political subdivision sustains because of the violation and a civil penalty of not less than five thousand nine hundred dollars and not more than eleven thousand eight hundred dollars per violation.
(c) If a person described in subsection (2)(a) of this section furnished information about the violation to the officials of the state while a criminal prosecution, civil action, or administrative action concerning the violation was under seal pursuant to section 24-31-1204 (3)(b), the court shall assess double the amount of actual damages resulting from the false claim, including interest from the date of the fraud to the date of full repayment of all damages, that the state or political subdivision sustains because of the violation and a civil penalty of not less than seven thousand eight hundred dollars and not more than fifteen thousand seven hundred dollars per violation.
(d) The attorney general may determine whether a person meets the criteria described in subsection (2)(a) of this section and submit the determination and reasoning to the court, which the court may consider when making a finding as to whether the person satisfies the criteria described in subsection (2)(a) of this section.
(3) Any information furnished pursuant to subsection (2) of this section is exempt from disclosure pursuant to the “Colorado Open Records Act”, part 2 of article 72 of this title 24.
(4) A person who violates this section is also liable to the state for reasonable attorney fees and the costs incurred during the enforcement of this part 12.
(5) This section does not apply to claims, records, or statements made pursuant to title 39.
(6)

 

(a) The maximum and minimum amounts for the civil penalties described in this section must be adjusted for inflation on July 1, 2023, and each July 1 thereafter. The adjustment made pursuant to this subsection (6) must be rounded upward or downward to the nearest ten-dollar increment. The secretary of state shall certify the adjusted maximum and minimum amounts for civil penalties within fourteen days after the appropriate information is available.
(b) For each action brought pursuant to this part 12, the applicable minimum and maximum amounts for a civil penalty are the amounts in effect on the date the cause of action accrues.
(c) As used in this section, “inflation” means the annual percentage change in the Denver-Aurora-Lakewood consumer price index, or its applicable successor index, published by the United States department of labor bureau of labor statistics.
(7) For accounting purposes, a fine or penalty received by the state pursuant to this part 12 is a damage award.
(8)

 

(a) Subject to section 24-31-1204 (4)(e), if the attorney general has authority to bring or intervene in a civil action pursuant to this part 12, the attorney general may accept from a person alleged to have violated subsection (1) of this section, in lieu of or as a part of a civil action, an assurance of discontinuance or a consent order approved by a court of competent jurisdiction of the alleged violation of this part 12. The assurance or consent order may include a stipulation for the voluntary payment by the alleged violator of any relief authorized by this part 12, including payment for investigation and litigation costs incurred by the attorney general or private person who brought an action pursuant to section 24-31-1204 (3), and actual damages resulting from the false claim plus any authorized multiplier, interest, and civil money penalty.
(b) An assurance of discontinuance or consent order accepted by the attorney general precludes a separate action pursuant to section 24-31-1204 (3) by any person based on the same factual circumstances, except for an action based on a violation of the assurance of discontinuance or consent order.
(c) An assurance of discontinuance accepted by the attorney general and any consent order filed with the court as a part of an action is a matter of public record unless the attorney general determines, at the attorney general’s discretion, that it is confidential to the parties to the action or proceeding and to the court and its employees. Upon the filing of a civil action or a motion or petition in a pending civil action by the attorney general alleging that a person has violated a confidential assurance of discontinuance or consent order accepted pursuant to this subsection

 

 (8), the assurance of discontinuance or consent order is a public record and open to inspection by any person.

(d) Proof by a preponderance of the evidence of a violation of an assurance or stipulation or consent order is prima facie evidence of a violation for the purposes of any civil action or proceeding brought by the attorney general after the alleged violation of the assurance or stipulation or consent order, whether a new action or a motion or petition in a pending action or proceeding.

C.R.S. § 24-31-1203

Added by 2022 Ch. 394, § 2, eff. 8/10/2022.
2022 Ch. 394, was passed without a safety clause. See Colo. Const. art. V, § 1(3).
COLORADO  WHISTLEBLOWER NEWS
COLORADO RESOURCES
Stop Fraud Colorado

Colorado Attorney General

Colorado Judicial Branch