• New Senate Bill Focuses on Healthcare Fraud Enforcement
  • December 2, 2009 | Author: B. Scott McBride
  • Law Firm: Baker & Hostetler LLP - Houston Office
  • Stating in his press release that “fraud represents one of the fastest growing and most costly forms of crime in America today,” Sen. Ted Kaufman (D-Del.) recently introduced the Health Care Fraud Enforcement Act of 2009 (S.1959) to “build on the fraud-prevention efforts included in the Senate Finance and Health, Education, Labor and Pension Committees’ comprehensive health care reform bills.” The bill, which could surface in the healthcare reform legislation currently being assembled in the Senate, proposes to amend the federal sentencing guidelines and the statutes governing healthcare fraud, forfeiture, money laundering and obstruction as follows:

    • Amends the sentencing guidelines to provide for a two-level increase in the offense level for any defendant convicted of a federal healthcare offense relating to a government healthcare program that involves a loss of $1 million or more, a three-level increase if the loss is $7 million or more, and a four-level increase if the loss is $20 million or more.
    • Clarifies that the “intended loss” attributable to a healthcare fraud scheme under Section 2B1.1 of the sentencing guidelines is the aggregate dollar amount of the fraudulent bills submitted.
    • Clarifies that “willful conduct” does not require proof that a defendant had actual knowledge of the law in question or specific intent to violate the law under the anti-kickback law (42 U.S.C. Sec. 1320a-7b) and the healthcare fraud statute (18 U.S.C. Sec. 1347).
    • Makes all claims resulting from illegal kickbacks subject to the federal False Claims Act even when the claims are not submitted directly by the wrongdoers themselves.
    • Expands the definition of “health care fraud offense” to include the existing anti-kickback offense as well as certain healthcare-related offenses under the Food, Drug and Cosmetic Act and the Employee Retirement Income Security Act (ERISA).
    • Authorizes the issuance of subpoenas by the U.S. Department of Justice (DOJ) for access to any institution that is the subject of an investigation under the Civil Rights for Institutionalized Persons Act (CRIPA) and for any documents, records, materials, files, reports, memoranda, policies, procedures, investigations, video or audio recordings and quality assurance reports of such institution.
    • Appropriates $20 million per year beginning 2011 through 2016 for investigations, prosecutions and civil or other proceedings related to healthcare fraud and abuse in connection with a government healthcare program.