II 113th CONGRESS 1st Session S. 1723 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. Short title This Act may be cited as the No Obamacare Kickbacks Act of 2013 . 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. 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. 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.