Fairness in Health Care Claims, Guidance, and Investigations Act

Summary: Fairness in Health Care Claims, Guidance, and Investigations Act - Amends the False Claims Act to set forth special rules for the investigation and prosecution of false claims submitted with respect to a federal health care program (i.e., a health care program funded by the federal government, a state health care program defined by the Social Security Act, or a health plan offered under the Patient Protection and Affordable Care Act). Requires the Attorney General to certify in writing, prior to requesting any information from a physician, hospital, or other provider or supplier of health care services in connection with an investigation reasonably expected to concern 10 or more claims submitted to a federal health care program by or on behalf of a single entity, that: (1) each agency responsible for promulgating relevant regulations, guidelines, and billing instructions relevant to any allegations of fraud has examined such regulations, guidelines, and instructions, all communications between the alleged perpetrator of the fraud and the agency, and each of the allegedly false claims; (2) the allegations under investigation are viewed as viable based on unambiguous regulations, guidelines, and billing instructions issued during the relevant time period; and (3) if proven to be true, the allegations will be pursued under the False Claims Act.  Prohibits an action against a health care provider or supplier under the False Claims Act: (1) unless the amount of damages alleged to have been sustained by the government is a material amount, (2) if a claim is submitted in good faith reliance on erroneous information or written statements of federal policy provided by a federal agency or in good faith reliance on an audit or review by an agency of the entity submitting the claim or retaining an overpayment, or (3) if a claim is submitted in substantial compliance with a model compliance plan issued by the Secretary of Health and Human Services (HHS).  Establishes the standard of proof necessary for a civil prosecution of a claim submitted with respect to a federal health care program as clear and convincing evidence (currently, a preponderance of the evidence is required for all other claims). 

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fairness in Health Care Claims, 
Guidance, and Investigations Act''.

SEC. 2. RULES FOR ACTIONS UNDER FALSE CLAIMS PROVISIONS BASED ON CLAIMS 
              SUBMITTED UNDER CERTAIN HEALTH CARE PROGRAMS.

    (a) In General.--Subchapter III of chapter 37 of title 31, United 
States Code, is amended by adding at the end the following:
``Sec. 3734. Rules for certain actions based on health care claims
    ``(a) In General.--In the case of any action that is brought under 
section 3730 and is based on a claim submitted with respect to a 
Federal health care program, sections 3729 through 3733 shall apply 
only to the extent that such sections are consistent with the 
provisions of this section.
    ``(b) Investigations of False Claims to Federal Health Care 
Programs.--
            ``(1) In general.--Before requesting any information from a 
        physician, hospital, or other provider or supplier of health 
        care services, by any formal or informal means, directly or in 
        cooperation with an investigating law enforcement agency, in 
        connection with an investigation reasonably expected to concern 
        10 or more claims submitted to a Federal health care program by 
        or on behalf of a single entity, the Attorney General shall 
        certify, in writing, that--
                    ``(A) each agency responsible for promulgating 
                relevant regulations, guidelines, and billing 
                instructions, directly or through intermediaries, has 
                examined all regulations, guidelines, and billing 
                instructions relevant to the allegations, all 
                communications between the alleged perpetrator and the 
                agency and its intermediaries, and each of the 
                allegedly false claims;
                    ``(B) in the view of the responsible agency 
                officials and the Attorney General, the allegations 
                under investigation are viable, and the relevant 
                regulations, guidelines and billing instructions were 
                unambiguous during the relevant time period; and
                    ``(C) if proven to be true, the allegations are 
                appropriately pursued under section 3729.
            ``(2) If certification not made.--If the Attorney General 
        (or his or her designee) is unable to make the certifications 
        required under paragraph (1), and the allegations were included 
        in an action brought by a person under section 3730(b), the 
        Attorney General shall notify the court and the court shall 
        dismiss these allegations.
    ``(c) Actions if Amount of Damages Are Material Amount.--
Notwithstanding sections 3729 through 3733, no action may be brought 
under section 3730 that is based on a claim submitted or an overpayment 
retained with respect to a Federal health care program unless the 
amount of damages alleged to have been sustained by the United States 
Government with respect to such claim or overpayment is a material 
amount.
    ``(d) Actions for Claims Submitted in Reliance on Official 
Guidance.--Notwithstanding sections 3729 through 3733, no action may be 
brought under section 3730 based on a claim submitted or an overpayment 
retained with respect to a Federal health care program--
            ``(1) in good faith reliance on erroneous information 
        supplied by an agency (or an agent thereof) about matters of 
        fact at issue;
            ``(2) in good faith reliance on written statements of 
        Federal policy that affects the claim or overpayment that were 
        provided by a Federal agency (or an agent thereof); or
            ``(3) in good faith reliance on an audit or review by an 
        agency of the person submitting the claim or on whose behalf 
        the claim was submitted, or of the person retaining the 
        overpayment, in which no findings were made that the claim or 
        overpayment violated the regulations, guidelines, or 
        instructions applicable to the Federal health care program at 
        issue in the claim or overpayment.
    ``(e) Action for Claims Submitted by Persons in Substantial 
Compliance With Model Compliance Plan.--Notwithstanding sections 3729 
through 3733, no action may be brought under section 3730 based on a 
claim submitted by or on behalf of a person, or an overpayment 
retained, with respect to a Federal health care program if the claim is 
submitted, or the overpayment retained, in substantial compliance with 
a model compliance plan issued by the Secretary of Health and Human 
Services with respect to that Federal health care program.
    ``(f) Standard of Proof.--In any action brought under section 3730 
with respect to a claim submitted, or an overpayment retained, with 
respect to a Federal health care program, section 3731(c) shall be 
applied by substituting `clear and convincing evidence' for `a 
preponderance of the evidence'.
    ``(g) Rule of Construction.--Nothing in this section shall be 
construed to limit the authority of the Government of the United States 
to recover damages with respect to a claim submitted, or an overpayment 
retained, with respect to a Federal health care program under 
provisions of law other than section 3729.
    ``(h) Definitions; Special Rules.--For purposes of this section--
            ``(1) the term `claim' means a claim as defined in section 
        3729(c);
            ``(2) the term `Federal health care program' means--
                    ``(A) any plan or program that provides health care 
                benefits, whether directly, through insurance, or 
                otherwise, and that is funded directly, in whole or in 
                part, by the United States Government;
                    ``(B) any State health care program, as defined in 
                section 1128(h) of the Social Security Act; or
                    ``(C) any qualifying health plan offered through an 
                Exchange established under, or any other health plan 
                established under, the Patient Protection and 
                Affordable Care Act (Public Law 111-148);
            ``(3) the amount of damages alleged to have been sustained 
        by the United States Government with respect to a claim 
        submitted by (or on behalf of) a person shall be treated as a 
        `material amount' only if such amount exceeds a proportion 
        (specified in regulations promulgated by the Secretary of 
        Health and Human Services in consultation with the Secretary of 
        Defense) of the total of the amounts for which claims were 
        submitted by (or on behalf of) such person--
                    ``(A) to the same Federal health care program, and
                    ``(B) for the same calendar year,
        as the claim upon which an action under section 3730 is based;
            ``(4) in determining whether an amount of damages is a 
        `material amount' under paragraph (3), with respect to a 
        person--
                    ``(A) the amount of damages for more than 1 claim 
                may be aggregated only if the acts or omissions 
                resulting in such damages were part of a pattern of 
                related acts or omissions by such person; and
                    ``(B) if damages for more than 1 claim are 
                aggregated in accordance with subparagraph (A), the 
                proportion referred to in paragraph (3) shall be 
                determined by comparing the amount of such aggregate 
                damages to the total of the amounts for which claims 
                were submitted by (or on behalf of) such person to the 
                same Federal health care program for each of the 
                calendar years for which any claim upon which such 
                aggregate damages were based was submitted;
            ``(5) the term `intermediary' means, with respect to a 
        Federal health care program, a contractor with an agency, a 
        State, or other entity that is engaged in the implementation of 
        that Federal health care program; and
            ``(6) the term `State' means each of the several States, 
        the District of Columbia, and any territory or possession of 
        the United States.''.
    (b) Conforming Amendment.--The table of sections for chapter 37 of 
title 31, United States Code, is amended by adding at the end the 
following new item:

``3734. Rules for certain actions based on health care claims.''.
    (c) Effective Date.--The amendments made by this section shall 
apply to any action or investigation under sections 3729 through 3733 
of title 31, United States Code, that is pending on, or commenced on or 
after, the date of the enactment of this Act.