[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 1723 Introduced in Senate (IS)]

113th CONGRESS
  1st Session
                                S. 1723

To clarify that the anti-kickback laws apply to qualified health plans, 
 the federally-facilitated marketplaces, and other plans and programs 
 under title I of the Patient Protection and Affordable Care Act, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 19, 2013

  Mr. Vitter introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
To clarify that the anti-kickback laws apply to qualified health plans, 
 the federally-facilitated marketplaces, and other plans and programs 
 under title I of the Patient Protection and Affordable Care Act, and 
                          for other purposes.

    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 ``No Obamacare Kickbacks Act of 
2013''.

SEC. 2. FINDINGS.

    The Congress finds the following:
            (1) Section 6402(f) of the Patient Protection and 
        Affordable Care Act (Public Law 111-148) applies the civil 
        penalties and damages for violations of the False Claims Act to 
        kickbacks and other acts involving Federal health care programs 
        that are subject to criminal penalties under section 1128B of 
        the Social Security Act (42 U.S.C. 1320a-7b).
            (2) In guidance issued on November 4, 2013, by the Center 
        for Consumer Information & Insurance Oversight (CCIIO) of the 
        Centers for Medicare & Medicaid Services, the CCIIO stated that 
        the ``Department of Health and Human Services (HHS) has broad 
        authority to regulate the Federal and State Marketplaces (e.g. 
        section 1321(a) of the Affordable Care Act)''. The November 4th 
        statement from the CCIIO suggests that qualified health plans 
        and other health care plans and programs established under 
        title I of the Patient Protection and Affordable Care Act are 
        similar to other Federal health care programs, such as the 
        Medicare Advantage program, over which the Secretary of Health 
        and Human Services also has broad regulatory authority.
            (3) The private health insurance issuers who offer 
        qualified health plans through marketplaces established under 
        the Patient Protection and Affordable Care Act and the private 
        health insurance issuers that offer Medicare Advantage plans 
        under the Medicare program both receive Federal dollars 
        directly from the Federal Government, with the issuers of 
        qualified health plans receiving Federal dollars through tax 
        credit subsidies and the issuers of Medicare Advantage plans 
        receiving payments from the Medicare Trust Funds.
            (4) The Federal Government facilitates applications for and 
        enrollment in qualified health plans through the federally-
        facilitated marketplaces and State exchanges in a similar 
        manner to the way the Federal Government facilitates 
        applications for and enrollment in plans under the Medicare 
        Advantage program and the Voluntary Prescription Drug Benefit 
        Program through federally funded call centers, web portals, and 
        consumer assistance personnel.
            (5) The Medicare Advantage program is a Federal health care 
        program to which the anti-kickback provisions of section 
        1128B(b) of the Social Security Act and other prohibited acts 
        involving Federal health care programs are subject to civil and 
        criminal penalties under the Social Security Act as well as 
        civil penalties under the False Claims Act.

SEC. 3. CLARIFICATION OF APPLICATION OF ANTI-KICKBACK LAWS TO QUALIFIED 
              HEALTH PLANS, MARKETPLACES, AND OTHER PLANS AND PROGRAMS 
              UNDER PPACA.

    (a) In General.--Section 1128B(f)(1) of the Social Security Act (42 
U.S.C. 1320a-7b(f)(1)) is amended by inserting before the semicolon the 
following: ``, including any plan or program established or funded 
under subtitle D or E (or the amendments made by such subtitles) of 
title I of the Patient Protection and Affordable Care Act (including 
the federally-facilitated marketplaces and State Exchanges, patient 
navigators, and related programs established by such Act, as well as 
any contract with an individual or entity hired by the Federal 
Government to facilitate enrollment in the federally-facilitated 
marketplaces)''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
take effect as if included in the enactment of the Patient Protection 
and Affordable Care Act.

SEC. 4. HHS OIG AND GAO JOINT STUDY AND REPORT.

    (a) Study.--The Inspector General of the Department of Health and 
Human Services and the Comptroller General of the United States shall 
jointly conduct a study regarding the effect of applying the anti-
kickback laws and other prohibited acts involving Federal health care 
programs to qualified health plans, federally-facilitated marketplaces 
and State Exchanges, and any other plan or program established or 
funded under subtitle D or E (or the amendments made by such subtitles) 
of title I of the Patient Protection and Affordable Care Act. In 
conducting the study, the Inspector General and Comptroller General 
shall--
            (1) identify all plans and programs that satisfy the 
        definition of ``Federal health care program'' under section 
        1128B(f) of the Social Security Act (42 U.S.C. 1320a-7b(f)) (as 
        amended by section 3(a));
            (2) identify any entity or individual that would benefit 
        from having qualified health plans, federally-facilitated 
        marketplaces, and any other plan or program established or 
        funded under subtitle D or E (or the amendments made by such 
        subtitles) of title I of the Patient Protection and Affordable 
        Care Act excluded from the definition of ``Federal health care 
        program'' under section 1128B(f) of the Social Security Act (as 
        so amended); and
            (3) separately estimate with respect to each of the 
        following, the impact of excluding qualified health plans, 
        federally-facilitated marketplaces and State Exchanges, and any 
        other plan or program established or funded under subtitle D or 
        E (or the amendments made by such subtitles) of title I of the 
        Patient Protection and Affordable Care Act from the definition 
        of ``Federal health care program'' under section 1128B(f) of 
        the Social Security Act (as so amended):
                    (A) Health care premiums (with and without non-
                federally funded subsidies).
                    (B) Consumer choice in health insurance coverage.
                    (C) The use of brand name versus generic drugs.
                    (D) The net cost of the Patient Protection and 
                Affordable Care Act to the Federal Government and to 
                all States and territories.
    (b) Report.--Not later than one year after the date of enactment of 
this Act, the Inspector General of the Department of Health and Human 
Services and the Comptroller General of the United States shall jointly 
submit a report to Congress on the results of the study conducted under 
subsection (a) that includes the information specified in paragraphs 
(1) through (3) of that subsection, together with such recommendations 
for legislative or administrative action as the Inspector General and 
Comptroller General determine appropriate.
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