II 

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. 

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 ‘‘Health Care Fraud 

5 Enforcement Act of 2009’’. 

6 SEC. 2. ENHANCEMENTS TO CRIMINAL LAWS RELATING TO 

7 HEALTH CARE FRAUD. 

8 (a) FRAUD SENTENCING GUIDELINES.— 

9 (1) DEFINITION.—In this subsection, the term 

10 ‘‘Federal health care offense’’ has the meaning given 


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1 that term in section 24 of title 18, United States 

2 Code, as amended by this Act. 

3 (2) REVIEW AND AMENDMENTS.—Pursuant to 

4 the authority under section 994 of title 28, United 

5 States Code, and in accordance with this subsection, 

6 the United States Sentencing Commission shall— 

7 (A) review the Federal Sentencing Guide8 lines and policy statements applicable to per9 sons convicted of Federal health care offenses; 

10 (B) amend the Federal Sentencing Guide11 lines and policy statements applicable to per12 sons convicted of Federal health care offenses 

13 involving Government health care programs to 

14 provide that the aggregate dollar amount of 

15 fraudulent bills submitted to the Government 

16 health care program shall constitute prima facie 

17 evidence of the amount of the intended loss by 

18 the defendant; and 

19 (C) amend the Federal Sentencing Guide20 lines to provide— 

21 (i) a 2-level increase in the offense 

22 level for any defendant convicted of a Fed23 eral health care offense relating to a Gov24 ernment health care program which inVerDate Nov 24 2008 01:02 Oct 29, 2009 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1959.IS S1959

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1 volves a loss of not less than $1,000,000 

2 and less than $7,000,000; 

3 (ii) a 3-level increase in the offense 

4 level for any defendant convicted of a Fed5 eral health care offense relating to a Gov6 ernment health care program which in7 volves a loss of not less than $7,000,000 

8 and less than $20,000,000; 

9 (iii) a 4-level increase in the offense 

10 level for any defendant convicted of a Fed11 eral health care offense relating to a Gov12 ernment health care program which in13 volves a loss of not less than $20,000,000; 

14 and 

15 (iv) if appropriate, otherwise amend 

16 the Federal Sentencing Guidelines and pol17 icy statements applicable to persons con18 victed of Federal health care offenses in19 volving Government health care programs. 

20 (3) REQUIREMENTS.—In carrying this sub21 section, the United States Sentencing Commission 

22 shall— 

23 (A) ensure that the Federal Sentencing 

24 Guidelines and policy statements— 


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1 (i) reflect the serious harms associ2 ated with health care fraud and the need 

3 for aggressive and appropriate law enforce4 ment action to prevent such fraud; and 

5 (ii) provide increased penalties for 

6 persons convicted of health care fraud of7 fenses in appropriate circumstances; 

8 (B) consult with individuals or groups rep9 resenting health care fraud victims, law enforce10 ment officials, the health care industry, and the 

11 Federal judiciary as part of the review de12 scribed in paragraph (2); 

13 (C) ensure reasonable consistency with 

14 other relevant directives and with other guide15 lines under the Federal Sentencing Guidelines; 

16 (D) account for any aggravating or miti17 gating circumstances that might justify excep18 tions, including circumstances for which the 

19 Federal Sentencing Guidelines, as in effect on 

20 the date of enactment of this Act, provide sen21 tencing enhancements; 

22 (E) make any necessary conforming 

23 changes to the Federal Sentencing Guidelines; 

24 and 


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1 (F) ensure that the Federal Sentencing 

2 Guidelines adequately meet the purposes of sen3 tencing. 

4 (b) INTENT REQUIREMENT FOR HEALTH CARE

5 FRAUD.—Section 1347 of title 18, United States Code, 

6 is amended— 

7 (1) by inserting ‘‘(a)’’ before ‘‘Whoever know8 ingly’’; and 

9 (2) by adding at the end the following: 

10 ‘‘(b) With respect to violations of this section, a per11 son need not have actual knowledge of this section or spe12 cific intent to commit a violation of this section.’’. 

13 (c) KICKBACKS.—Section 1128B of the Social Secu14 rity Act (42 U.S.C. 1320a–7b) is amended by adding at 

15 the end the following new subsection: 

16 ‘‘(g) In addition to the penalties provided for in this 

17 section or section 1128A, a claim for items or services that 

18 are provided in violation of this section constitutes a false 

19 or fraudulent claim for purposes of subchapter III of chap20 ter 37 of title 31, United States Code.’’. 

21 (d) HEALTH CARE FRAUD OFFENSE.—Section 24(a) 

22 of title 18, United States Code, is amended— 

23 (1) in paragraph (1), by striking the semicolon 

24 and inserting ‘‘or section 1128B of the Social Secu25 rity Act (42 U.S.C. 1320a–7b); or’’; and 


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1 (2) in paragraph (2)— 

2 (A) by inserting ‘‘1349,’’ after ‘‘1343,’’; 

3 and 

4 (B) by inserting ‘‘section 301 of the Fed5 eral Food, Drug, and Cosmetic Act (21 U.S.C. 

6 331), or section 411, 501, or 511 of the Em7 ployee Retirement Income Security Act of 1974 

8 (29 U.S.C. 1111, 1131, and 1141),’’ after 

9 ‘‘title,’’. 

10 SEC. 3. SUBPOENA AUTHORITY RELATING TO HEALTH 

11 CARE. 

12 (a) SUBPOENAS UNDER THE HEALTH INSURANCE

13 PORTABILITY AND ACCOUNTABILITY ACT OF 1996.—Sec14 tion 1510(b) of title 18, United States Code, is amended— 

15 (1) in paragraph (1), by striking ‘‘to the grand 

16 jury’’; and 

17 (2) in paragraph (2)— 

18 (A) in subparagraph (A), by striking 

19 ‘‘grand jury subpoena’’ and inserting ‘‘subpoena 

20 for records’’; and 

21 (B) in the matter following subparagraph 

22 (B), by striking ‘‘to the grand jury’’. 

23 (b) SUBPOENAS UNDER THE CIVIL RIGHTS OF IN24 STITUTIONALIZED PERSONS ACT.—The Civil Rights of 


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1 Institutionalized Persons Act (42 U.S.C. 1997 et seq.) is 

2 amended by inserting after section 3 the following: 

3 ‘‘SEC. 3A. SUBPOENA AUTHORITY. 

4 ‘‘(a) AUTHORITY.—The Attorney General, or at the 

5 direction of the Attorney General, any officer or employee 

6 of the Department of Justice may require by subpoena 

7 access to any institution that is the subject of an investiga8 tion under this Act and to any document, record, material, 

9 file, report, memorandum, policy, procedure, investigation, 

10 video or audio recording, or quality assurance report relat11 ing to any institution that is the subject of an investiga12 tion under this Act to determine whether there are condi13 tions which deprive persons residing in or confined to the 

14 institution of any rights, privileges, or immunities secured 

15 or protected by the Constitution or laws of the United 

16 States. 

17 ‘‘(b) ISSUANCE AND ENFORCEMENT OF SUB18 POENAS.— 

19 ‘‘(1) ISSUANCE.—Subpoenas issued under this 

20 section— 

21 ‘‘(A) shall bear the signature of the Attor22 ney General or any officer or employee of the 

23 Department of Justice as designated by the At24 torney General; and 


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1 ‘‘(B) shall be served by any person or class 

2 of persons designated by the Attorney General 

3 or a designated officer or employee for that 

4 purpose. 

5 ‘‘(2) ENFORCEMENT.—In the case of contu6 macy or failure to obey a subpoena issued under this 

7 section, the United States district court for the judi8 cial district in which the institution is located may 

9 issue an order requiring compliance. Any failure to 

10 obey the order of the court may be punished by the 

11 court as a contempt that court. 

12 ‘‘(c) PROTECTION OF SUBPOENAED RECORDS AND

13 INFORMATION.—Any document, record, material, file, re14 port, memorandum, policy, procedure, investigation, video 

15 or audio recording, or quality assurance report or other 

16 information obtained under a subpoena issued under this 

17 section— 

18 ‘‘(1) may not be used for any purpose other 

19 than to protect the rights, privileges, or immunities 

20 secured or protected by the Constitution or laws of 

21 the United States of persons who reside, have re22 sided, or will reside in an institution; 

23 ‘‘(2) may not be transmitted by or within the 

24 Department of Justice for any purpose other than to 

25 protect the rights, privileges, or immunities secured 


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1 or protected by the Constitution or laws of the 

2 United States of persons who reside, have resided, 

3 or will reside in an institution; and 

4 ‘‘(3) shall be redacted, obscured, or otherwise 

5 altered if used in any publicly available manner so 

6 as to prevent the disclosure of any personally identi7 fiable information.’’. 

8 SEC. 4. ADDITIONAL AUTHORIZATION OF APPROPRIATIONS 

9 TO THE DEPARTMENT OF JUSTICE FOR 

10 CRIMINAL AND CIVIL ENFORCEMENT OF 

11 HEALTH CARE FRAUD. 

12 (a) AUTHORIZATION.—There is authorized to be ap13 propriated to the Attorney General, to remain available 

14 until expended, $20,000,000 for each of fiscal years 2011 

15 through 2016 for the purposes of investigations, prosecu16 tions, and civil or other proceedings relating to fraud and 

17 abuse in connection with any health care benefit program, 

18 as defined in section 24(b) of title 18, United States Code. 

19 (b) ALLOCATIONS.—With respect to each of fiscal 

20 years 2011 through 2016, the amount authorized to be 

21 appropriated under subsection (a) shall be allocated as fol22 lows: 

23 (1) For the offices of the United States attor24 neys, $10,000,000. 


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1 (2) For the Criminal Division of the Depart2 ment of Justice, $5,000,000. 

3 (3) For the Civil Division of the Department of 

4 Justice, $5,000,000. 

Æ 


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