II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘No Obamacare Kick5 backs Act of 2013’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds the following: 


emcdonald on DSK67QTVN1PROD with BILLS
2 

•S 1723 IS

1 (1) Section 6402(f) of the Patient Protection 

2 and Affordable Care Act (Public Law 111–148) ap3 plies the civil penalties and damages for violations of 

4 the False Claims Act to kickbacks and other acts in5 volving Federal health care programs that are sub6 ject to criminal penalties under section 1128B of the 

7 Social Security Act (42 U.S.C. 1320a–7b). 

8 (2) In guidance issued on November 4, 2013, 

9 by the Center for Consumer Information & Insur10 ance Oversight (CCIIO) of the Centers for Medicare 

11 & Medicaid Services, the CCIIO stated that the ‘‘De12 partment of Health and Human Services (HHS) has 

13 broad authority to regulate the Federal and State 

14 Marketplaces (e.g. section 1321(a) of the Affordable 

15 Care Act)’’. The November 4th statement from the 

16 CCIIO suggests that qualified health plans and 

17 other health care plans and programs established 

18 under title I of the Patient Protection and Afford19 able Care Act are similar to other Federal health 

20 care programs, such as the Medicare Advantage pro21 gram, over which the Secretary of Health and 

22 Human Services also has broad regulatory authority. 

23 (3) The private health insurance issuers who 

24 offer qualified health plans through marketplaces es25 tablished under the Patient Protection and AffordVerDate Mar 15 2010 23:10 Nov 20, 2013 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1723.IS S1723

emcdonald on DSK67QTVN1PROD with BILLS
3 

•S 1723 IS

1 able Care Act and the private health insurance 

2 issuers that offer Medicare Advantage plans under 

3 the Medicare program both receive Federal dollars 

4 directly from the Federal Government, with the 

5 issuers of qualified health plans receiving Federal 

6 dollars through tax credit subsidies and the issuers 

7 of Medicare Advantage plans receiving payments 

8 from the Medicare Trust Funds. 

9 (4) The Federal Government facilitates applica10 tions for and enrollment in qualified health plans 

11 through the federally-facilitated marketplaces and 

12 State exchanges in a similar manner to the way the 

13 Federal Government facilitates applications for and 

14 enrollment in plans under the Medicare Advantage 

15 program and the Voluntary Prescription Drug Ben16 efit Program through federally funded call centers, 

17 web portals, and consumer assistance personnel. 

18 (5) The Medicare Advantage program is a Fed19 eral health care program to which the anti-kickback 

20 provisions of section 1128B(b) of the Social Security 

21 Act and other prohibited acts involving Federal 

22 health care programs are subject to civil and crimi23 nal penalties under the Social Security Act as well 

24 as civil penalties under the False Claims Act. 


emcdonald on DSK67QTVN1PROD with BILLS
4 

•S 1723 IS

1 SEC. 3. CLARIFICATION OF APPLICATION OF ANTI-KICK2 BACK LAWS TO QUALIFIED HEALTH PLANS, 

3 MARKETPLACES, AND OTHER PLANS AND 

4 PROGRAMS UNDER PPACA. 

5 (a) IN GENERAL.—Section 1128B(f)(1) of the Social 

6 Security Act (42 U.S.C. 1320a–7b(f)(1)) is amended by 

7 inserting before the semicolon the following: ‘‘, including 

8 any plan or program established or funded under subtitle 

9 D or E (or the amendments made by such subtitles) of 

10 title I of the Patient Protection and Affordable Care Act 

11 (including the federally-facilitated marketplaces and State 

12 Exchanges, patient navigators, and related programs es13 tablished by such Act, as well as any contract with an indi14 vidual or entity hired by the Federal Government to facili15 tate enrollment in the federally-facilitated marketplaces)’’. 

16 (b) EFFECTIVE DATE.—The amendment made by 

17 subsection (a) shall take effect as if included in the enact18 ment of the Patient Protection and Affordable Care Act. 

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

20 (a) STUDY.—The Inspector General of the Depart21 ment of Health and Human Services and the Comptroller 

22 General of the United States shall jointly conduct a study 

23 regarding the effect of applying the anti-kickback laws and 

24 other prohibited acts involving Federal health care pro25 grams to qualified health plans, federally-facilitated mar26 ketplaces and State Exchanges, and any other plan or proVerDate Mar 15 2010 22:21 Nov 22, 2013 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1723.IS S1723

emcdonald on DSK67QTVN1PROD with BILLS
5 

•S 1723 IS

1 gram established or funded under subtitle D or E (or the 

2 amendments made by such subtitles) of title I of the Pa3 tient Protection and Affordable Care Act. In conducting 

4 the study, the Inspector General and Comptroller General 

5 shall— 

6 (1) identify all plans and programs that satisfy 

7 the definition of ‘‘Federal health care program’’ 

8 under section 1128B(f) of the Social Security Act 

9 (42 U.S.C. 1320a–7b(f)) (as amended by section 

10 3(a)); 

11 (2) identify any entity or individual that would 

12 benefit from having qualified health plans, federally13 facilitated marketplaces, and any other plan or pro14 gram established or funded under subtitle D or E 

15 (or the amendments made by such subtitles) of title 

16 I of the Patient Protection and Affordable Care Act 

17 excluded from the definition of ‘‘Federal health care 

18 program’’ under section 1128B(f) of the Social Se19 curity Act (as so amended); and 

20 (3) separately estimate with respect to each of 

21 the following, the impact of excluding qualified 

22 health plans, federally-facilitated marketplaces and 

23 State Exchanges, and any other plan or program es24 tablished or funded under subtitle D or E (or the 

25 amendments made by such subtitles) of title I of the 


emcdonald on DSK67QTVN1PROD with BILLS
6 

•S 1723 IS

1 Patient Protection and Affordable Care Act from the 

2 definition of ‘‘Federal health care program’’ under 

3 section 1128B(f) of the Social Security Act (as so 

4 amended): 

5 (A) Health care premiums (with and with6 out non-federally funded subsidies). 

7 (B) Consumer choice in health insurance 

8 coverage. 

9 (C) The use of brand name versus generic 

10 drugs. 

11 (D) The net cost of the Patient Protection 

12 and Affordable Care Act to the Federal Govern13 ment and to all States and territories. 

14 (b) REPORT.—Not later than one year after the date 

15 of enactment of this Act, the Inspector General of the De16 partment of Health and Human Services and the Comp17 troller General of the United States shall jointly submit 

18 a report to Congress on the results of the study conducted 

19 under subsection (a) that includes the information speci20 fied in paragraphs (1) through (3) of that subsection, to21 gether with such recommendations for legislative or ad22 ministrative action as the Inspector General and Comp23 troller General determine appropriate. 

Æ 


emcdonald on DSK67QTVN1PROD with BILLS