Keep an eye on the progress of Senate Bill 1959, introduced on October 28 by Senator Ted Kaufman (D-Del.), (along with co-sponsoring Senators Patrick Leahy, Arlen Specter, Herb Kohl, Chuck Schumer, and Amy Klobuchar), especially if you operate a Medicare home care agency in Miami-Dade, Houston, Detroit or Los Angeles.
The Health Care Fraud Enforcement Act of 2009 (S.1959), as drafted, aims to strengthen the U.S. government’s capacity to investigate and prosecute waste, fraud and abuse in government health care programs and private health insurance. Enforcement, especially for Medicare fraud, has been accused in recent years of being spotty, even half-hearted. Budget cuts in the HHS departments charged with investigation and enforcement handcuffed efforts toward the beginning of the present decade but began to be restored recently.
According
to a November 16 article in American Medical News by Amy Lynn Sorrel, 57 new criminal health care fraud investigations were opened in 2008, up from 878 in the previous year. Prosecutors opened 843 civil cases in 2008, compared with 776 in 2007. A total of 2,911 civil and criminal cases were pending in 2008, up from 2,355 in 2007.
In brief, S.1959 would (among other things):
- Amend Federal Sentencing Guidelines to provide a two-level increase in the offense for a defendant convicted of a federal health care offense relating to a government health care 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 on more.
- Specify that, for purposes of the Federal Anti-Kickback Statute and health care fraud statute (18 U.S.C. 1347), “willful conduct” does not require proof that a defendant had actual knowledge of the law in question or specific intent to violate the law.
- Amend the Federal Anti-Kickback Statute to ensure that all claims resulting from illegal kickbacks are false, even if the claims are not submitted directly by the wrongdoers themselves.
- Expand the definition of a “health care fraud offense.”
- Authorize the Department of Justice to issue subpoenas for access to any institution that is the subject of an investigation related to a violation of the Civil Rights for Institutionalized Persons Act (and for any documents, records, materials, files, reports, memoranda, policies, procedures, investigations, video or audio recordings, and quality assurance reports).
- Authorize the appropriation of $20 million per year from 2011 through 2016 for investigations, prosecutions and civil or other proceedings related to fraud and abuse.
According to Senator Kaufman’s Press Release, “[f]raud perpetuated against both public and private health plans costs between $72 and $220 billion annually, increasing the cost of medical care and health insurance and undermining public trust in our health care system.”
S.1959 has been referred to the Judiciary Committee.
