II 111th CONGRESS 1st Session S. 1959 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.

1.

Short title

This Act may be cited as the Health Care Fraud Enforcement Act of 2009.

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,.

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:

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.

.

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.