[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1959 Introduced in Senate (IS)]
111th CONGRESS
1st Session
S. 1959
To improve health care fraud enforcement.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
October 28, 2009
Mr. Kaufman (for himself, Mr. Leahy, Mr. Specter, Mr. Kohl, Mr.
Schumer, and Ms. Klobuchar) introduced the following bill; which was
read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To improve health care fraud enforcement.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Health Care Fraud Enforcement Act of
2009''.
SEC. 2. ENHANCEMENTS TO CRIMINAL LAWS RELATING TO HEALTH CARE FRAUD.
(a) Fraud Sentencing Guidelines.--
(1) Definition.--In this subsection, the term ``Federal
health care offense'' has the meaning given that term in
section 24 of title 18, United States Code, as amended by this
Act.
(2) Review and amendments.--Pursuant to the authority under
section 994 of title 28, United States Code, and in accordance
with this subsection, the United States Sentencing Commission
shall--
(A) review the Federal Sentencing Guidelines and
policy statements applicable to persons convicted of
Federal health care offenses;
(B) amend the Federal Sentencing Guidelines and
policy statements applicable to persons convicted of
Federal health care offenses involving Government
health care programs to provide that the aggregate
dollar amount of fraudulent bills submitted to the
Government health care program shall constitute prima
facie evidence of the amount of the intended loss by
the defendant; and
(C) amend the Federal Sentencing Guidelines to
provide--
(i) a 2-level increase in the offense level
for any defendant convicted of a Federal health
care offense relating to a Government health
care program which involves a loss of not less
than $1,000,000 and less than $7,000,000;
(ii) a 3-level increase in the offense
level for any defendant convicted of a Federal
health care offense relating to a Government
health care program which involves a loss of
not less than $7,000,000 and less than
$20,000,000;
(iii) a 4-level increase in the offense
level for any defendant convicted of a Federal
health care offense relating to a Government
health care program which involves a loss of
not less than $20,000,000; and
(iv) if appropriate, otherwise amend the
Federal Sentencing Guidelines and policy
statements applicable to persons convicted of
Federal health care offenses involving
Government health care programs.
(3) Requirements.--In carrying this subsection, the United
States Sentencing Commission shall--
(A) ensure that the Federal Sentencing Guidelines
and policy statements--
(i) reflect the serious harms associated
with health care fraud and the need for
aggressive and appropriate law enforcement
action to prevent such fraud; and
(ii) provide increased penalties for
persons convicted of health care fraud offenses
in appropriate circumstances;
(B) consult with individuals or groups representing
health care fraud victims, law enforcement officials,
the health care industry, and the Federal judiciary as
part of the review described in paragraph (2);
(C) ensure reasonable consistency with other
relevant directives and with other guidelines under the
Federal Sentencing Guidelines;
(D) account for any aggravating or mitigating
circumstances that might justify exceptions, including
circumstances for which the Federal Sentencing
Guidelines, as in effect on the date of enactment of
this Act, provide sentencing enhancements;
(E) make any necessary conforming changes to the
Federal Sentencing Guidelines; and
(F) ensure that the Federal Sentencing Guidelines
adequately meet the purposes of sentencing.
(b) Intent Requirement for Health Care Fraud.--Section 1347 of
title 18, United States Code, is amended--
(1) by inserting ``(a)'' before ``Whoever knowingly''; and
(2) by adding at the end the following:
``(b) With respect to violations of this section, a person need not
have actual knowledge of this section or specific intent to commit a
violation of this section.''.
(c) Kickbacks.--Section 1128B of the Social Security Act (42 U.S.C.
1320a-7b) is amended by adding at the end the following new subsection:
``(g) In addition to the penalties provided for in this section or
section 1128A, a claim for items or services that are provided in
violation of this section constitutes a false or fraudulent claim for
purposes of subchapter III of chapter 37 of title 31, United States
Code.''.
(d) Health Care Fraud Offense.--Section 24(a) of title 18, United
States Code, is amended--
(1) in paragraph (1), by striking the semicolon and
inserting ``or section 1128B of the Social Security Act (42
U.S.C. 1320a-7b); or''; and
(2) in paragraph (2)--
(A) by inserting ``1349,'' after ``1343,''; and
(B) by inserting ``section 301 of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 331), or section 411,
501, or 511 of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1111, 1131, and 1141),'' after
``title,''.
SEC. 3. SUBPOENA AUTHORITY RELATING TO HEALTH CARE.
(a) Subpoenas Under the Health Insurance Portability and
Accountability Act of 1996.--Section 1510(b) of title 18, United States
Code, is amended--
(1) in paragraph (1), by striking ``to the grand jury'';
and
(2) in paragraph (2)--
(A) in subparagraph (A), by striking ``grand jury
subpoena'' and inserting ``subpoena for records''; and
(B) in the matter following subparagraph (B), by
striking ``to the grand jury''.
(b) Subpoenas Under the Civil Rights of Institutionalized Persons
Act.--The Civil Rights of Institutionalized Persons Act (42 U.S.C. 1997
et seq.) is amended by inserting after section 3 the following:
``SEC. 3A. SUBPOENA AUTHORITY.
``(a) Authority.--The Attorney General, or at the direction of the
Attorney General, any officer or employee of the Department of Justice
may require by subpoena access to any institution that is the subject
of an investigation under this Act and to any document, record,
material, file, report, memorandum, policy, procedure, investigation,
video or audio recording, or quality assurance report relating to any
institution that is the subject of an investigation under this Act to
determine whether there are conditions which deprive persons residing
in or confined to the institution of any rights, privileges, or
immunities secured or protected by the Constitution or laws of the
United States.
``(b) Issuance and Enforcement of Subpoenas.--
``(1) Issuance.--Subpoenas issued under this section--
``(A) shall bear the signature of the Attorney
General or any officer or employee of the Department of
Justice as designated by the Attorney General; and
``(B) shall be served by any person or class of
persons designated by the Attorney General or a
designated officer or employee for that purpose.
``(2) Enforcement.--In the case of contumacy or failure to
obey a subpoena issued under this section, the United States
district court for the judicial district in which the
institution is located may issue an order requiring compliance.
Any failure to obey the order of the court may be punished by
the court as a contempt that court.
``(c) Protection of Subpoenaed Records and Information.--Any
document, record, material, file, report, memorandum, policy,
procedure, investigation, video or audio recording, or quality
assurance report or other information obtained under a subpoena issued
under this section--
``(1) may not be used for any purpose other than to protect
the rights, privileges, or immunities secured or protected by
the Constitution or laws of the United States of persons who
reside, have resided, or will reside in an institution;
``(2) may not be transmitted by or within the Department of
Justice for any purpose other than to protect the rights,
privileges, or immunities secured or protected by the
Constitution or laws of the United States of persons who
reside, have resided, or will reside in an institution; and
``(3) shall be redacted, obscured, or otherwise altered if
used in any publicly available manner so as to prevent the
disclosure of any personally identifiable information.''.
SEC. 4. ADDITIONAL AUTHORIZATION OF APPROPRIATIONS TO THE DEPARTMENT OF
JUSTICE FOR CRIMINAL AND CIVIL ENFORCEMENT OF HEALTH CARE
FRAUD.
(a) Authorization.--There is authorized to be appropriated to the
Attorney General, to remain available until expended, $20,000,000 for
each of fiscal years 2011 through 2016 for the purposes of
investigations, prosecutions, and civil or other proceedings relating
to fraud and abuse in connection with any health care benefit program,
as defined in section 24(b) of title 18, United States Code.
(b) Allocations.--With respect to each of fiscal years 2011 through
2016, the amount authorized to be appropriated under subsection (a)
shall be allocated as follows:
(1) For the offices of the United States attorneys,
$10,000,000.
(2) For the Criminal Division of the Department of Justice,
$5,000,000.
(3) For the Civil Division of the Department of Justice,
$5,000,000.
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