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[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.
                                 <all>
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