There follow the extra readings we discussed in our class on March 6, 2007.
We will discuss the following during our next class, please.
Kindly recall that we have a special makeup class scheduled for March 23, Friday, at our usual time:
4.30 PM to 7.10 PM, in East 134.
I
am endeavoring to schedule times/dates to give each of you the
opportunity to confer with me in person at GMU to discuss your final
paper topics and anything else about our course and your career
planning that you would like to discuss with me.
1. http://www.usdoj.gov/usao/iln/osc/documents/libby_indictment_28102005.pdf
Note
the following applicable laws and compare and contrast these laws to
what is included in the antifraud and abuse laws we have reviewed in
the Baumann text (see the end of this email please for the antikickback
statute):
Title 18 Section 1001 (false statements),
§ 1001. Statements or entries generally
(a)
Except as otherwise provided in this section, whoever, in any matter
within the jurisdiction of the executive, legislative, or judicial
branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3)
makes or uses any false writing or document knowing the same to contain
any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years
or, if the offense involves international or domestic terrorism (as
defined in section 2331), imprisoned not more than 8 years, or both.
(b)
Subsection (a) does not apply to a party to a judicial proceeding, or
that party's counsel, for statements, representations, writings or
documents submitted by such party or counsel to a judge or magistrate
in that proceeding.
(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to—
(1)
administrative matters, including a claim for payment, a matter related
to the procurement of property or services, personnel or employment
practices, or support services, or a document required by law, rule, or
regulation to be submitted to the Congress or any office or officer
within the legislative branch; or
(2) any investigation or review, conducted pursuant to the
authority of any committee, subcommittee, commission or office of the
Congress, consistent with applicable rules of the House or Senate.
Title 18, Section 1503 (obstruction of justice),
§ 1503. Influencing or injuring officer or juror generally
(a)
Whoever corruptly, or by threats or force, or by any threatening letter
or communication, endeavors to influence, intimidate, or impede any
grand or petit juror, or officer in or of any court of the United
States, or officer who may be serving at any examination or other
proceeding before any United States magistrate judge or other
committing magistrate, in the discharge of his duty, or injures any
such grand or petit juror in his person or property on account of any
verdict or indictment assented to by him, or on account of his being or
having been such juror, or injures any such officer, magistrate judge,
or other committing magistrate in his person or property on account of
the performance of his official duties, or corruptly or by threats or
force, or by any threatening letter or communication, influences,
obstructs, or impedes, or endeavors to influence, obstruct, or impede,
the due administration of justice, shall be punished as provided in
subsection (b). If the offense under this section occurs in connection
with a trial of a criminal case, and the act in violation of this
section involves the threat of physical force or physical force, the
maximum term of imprisonment which may be imposed for the offense shall
be the higher of that otherwise provided by law or the maximum term
that could have been imposed for any offense charged in such case.
(b) The punishment for an offense under this section is—
(1) in the case of a killing, the punishment provided in sections 1111 and 1112;
(2)
in the case of an attempted killing, or a case in which the offense was
committed against a petit juror and in which a class A or B felony was
charged, imprisonment for not more than 20 years, a fine under this
title, or both; and
(3) in any other case, imprisonment for not more than 10 years, a fine under this title, or both.
and Title 18 Section 1623 (perjury),
§ 1623. False declarations before grand jury or court
(a)
Whoever under oath (or in any declaration, certificate, verification,
or statement under penalty of perjury as permitted under section 1746
of title 28, United States Code) in any proceeding before or ancillary
to any court or grand jury of the United States knowingly makes any
false material declaration or makes or uses any other information,
including any book, paper, document, record, recording, or other
material, knowing the same to contain any false material declaration,
shall be fined under this title or imprisoned not more than five years,
or both.
(b) This section is applicable whether the conduct occurred within or without the United States.
(c)
An indictment or information for violation of this section alleging
that, in any proceedings before or ancillary to any court or grand jury
of the United States, the defendant under oath has knowingly made two
or more declarations, which are inconsistent to the degree that one of
them is necessarily false, need not specify which declaration is false
if—
(1) each declaration was material to the point in question, and
(2) each declaration was made within the period of the statute of limitations for the offense charged under this section.
In
any prosecution under this section, the falsity of a declaration set
forth in the indictment or information shall be established sufficient
for conviction by proof that the defendant while under oath made
irreconcilably contradictory declarations material to the point in
question in any proceeding before or ancillary to any court or grand
jury. It shall be a defense to an indictment or information made
pursuant to the first sentence of this subsection that the defendant at
the time he made each declaration believed the declaration was true.
(d)
Where, in the same continuous court or grand jury proceeding in which a
declaration is made, the person making the declaration admits such
declaration to be false, such admission shall bar prosecution under
this section if, at the time the admission is made, the declaration has
not substantially affected the proceeding, or it has not become
manifest that such falsity has been or will be exposed.
(e) Proof beyond a reasonable doubt under this section is
sufficient for conviction. It shall not be necessary that such proof be
made by any particular number of witnesses or by documentary or other
type of evidence.
2. http://biotech.law.lsu.edu/cases/fca/greber.htm
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TItle 42 Section 1320a–7b. Criminal penalties for acts involving Federal health care programs
(a) Making or causing to be made false statements or representations
Whoever—
(1)
knowingly and willfully makes or causes to be made any false statement
or representation of a material fact in any application for any benefit
or payment under a Federal health care program (as defined in
subsection (f) of this section),
(2) at any time knowingly and willfully makes or causes to be made
any false statement or representation of a material fact for use in
determining rights to such benefit or payment,
(3) having knowledge of the occurrence of any event affecting
(A) his initial or continued right to any such benefit or payment, or
(B)
the initial or continued right to any such benefit or payment of any
other individual in whose behalf he has applied for or is receiving
such benefit or payment, conceals or fails to disclose such event with
an intent fraudulently to secure such benefit or payment either in a
greater amount or quantity than is due or when no such benefit or
payment is authorized,
(4) having made application to receive any such benefit or payment
for the use and benefit of another and having received it, knowingly
and willfully converts such benefit or payment or any part thereof to a
use other than for the use and benefit of such other person,
(5) presents or causes to be presented a claim for a physician's
service for which payment may be made under a Federal health care
program and knows that the individual who furnished the service was not
licensed as a physician, or
(6)
for a fee knowingly and willfully counsels or assists an individual to
dispose of assets (including by any transfer in trust) in order for the
individual to become eligible for medical assistance under a State plan
under subchapter XIX of this chapter, if disposing of the assets
results in the imposition of a period of ineligibility for such
assistance under section 1396p (c) of this title,
shall
(i) in the case of such a statement, representation,
concealment, failure, or conversion by any person in connection with
the furnishing (by that person) of items or services for which payment
is or may be made under the program, be guilty of a felony and upon
conviction thereof fined not more than $25,000 or imprisoned for not
more than five years or both, or
(ii) in the case of such a statement, representation, concealment,
failure, conversion, or provision of counsel or assistance by any other
person, be guilty of a misdemeanor and upon conviction thereof fined
not more than $10,000 or imprisoned for not more than one year, or
both. In addition, in any case where an individual who is otherwise
eligible for assistance under a Federal health care program is
convicted of an offense under the preceding provisions of this
subsection, the administrator of such program may at its option
(notwithstanding any other provision of such program) limit, restrict,
or suspend the eligibility of that individual for such period (not
exceeding one year) as it deems appropriate; but the imposition of a
limitation, restriction, or suspension with respect to the eligibility
of any individual under this sentence shall not affect the eligibility
of any other person for assistance under the plan, regardless of the
relationship between that individual and such other person.
(b) Illegal remunerations
(1) Whoever knowingly and willfully
solicits or receives any remuneration (including any kickback, bribe,
or rebate) directly or indirectly, overtly or covertly, in cash or in
kind—
(A) in return for referring an individual to a person for the
furnishing or arranging for the furnishing of any item or service for
which payment may be made in whole or in part under a Federal health
care program, or
(B)
in return for purchasing, leasing, ordering, or arranging for or
recommending purchasing, leasing, or ordering any good, facility,
service, or item for which payment may be made in whole or in part
under a Federal health care program,
shall be guilty of a felony and upon conviction thereof, shall be
fined not more than $25,000 or imprisoned for not more than five years,
or both.
(2) Whoever knowingly and willfully offers or pays any
remuneration (including any kickback, bribe, or rebate) directly or
indirectly, overtly or covertly, in cash or in kind to any person to
induce such person—
(A) to refer an individual to a person for the furnishing or
arranging for the furnishing of any item or service for which payment
may be made in whole or in part under a Federal health care program, or
(B)
to purchase, lease, order, or arrange for or recommend purchasing,
leasing, or ordering any good, facility, service, or item for which
payment may be made in whole or in part under a Federal health care
program,
shall be guilty of a felony and upon conviction thereof, shall be
fined not more than $25,000 or imprisoned for not more than five years,
or both.
(3) Paragraphs (1) and (2) shall not apply to—
(A) a
discount or other reduction in price obtained by a provider of services
or other entity under a Federal health care program if the reduction in
price is properly disclosed and appropriately reflected in the costs
claimed or charges made by the provider or entity under a Federal
health care program;
(B) any amount paid by an employer to an employee (who has a bona
fide employment relationship with such employer) for employment in the
provision of covered items or services;
(C) any amount paid by a
vendor of goods or services to a person authorized to act as a
purchasing agent for a group of individuals or entities who are
furnishing services reimbursed under a Federal health care program if—
(i) the person has a written contract, with each such individual
or entity, which specifies the amount to be paid the person, which
amount may be a fixed amount or a fixed percentage of the value of the
purchases made by each such individual or entity under the contract,
and
(ii)
in the case of an entity that is a provider of services (as defined in
section 1395x (u) of this title), the person discloses (in such form
and manner as the Secretary requires) to the entity and, upon request,
to the Secretary the amount received from each such vendor with respect
to purchases made by or on behalf of the entity;
(D) a waiver of any coinsurance under part B of subchapter XVIII
of this chapter by a Federally qualified health care center with
respect to an individual who qualifies for subsidized services under a
provision of the Public Health Service Act [42 U.S.C. 201 et seq.];
(E) any payment practice specified by the
Secretary in regulations promulgated pursuant to section 14(a) of the
Medicare and Medicaid Patient and Program Protection Act of 1987 or in
regulations under section 1395w–104 (e)(6) [1] of this title;
(F) any remuneration between an organization and an individual or
entity providing items or services, or a combination thereof, pursuant
to a written agreement between the organization and the individual or
entity if the organization is an eligible organization under section
1395mm of this title or if the written agreement, through a
risk-sharing arrangement, places the individual or entity at
substantial financial risk for the cost or utilization of the items or
services, or a combination thereof, which the individual or entity is
obligated to provide;
(G) the waiver or reduction by pharmacies (including pharmacies of
the Indian Health Service, Indian tribes, tribal organizations, and
urban Indian organizations) of any cost-sharing imposed under part D of
subchapter XVIII of this chapter, if the conditions described in
clauses (i) through (iii) of section 1320a–7a (i)(6)(A) of this title
are met with respect to the waiver or reduction (except that, in the
case of such a waiver or reduction on behalf of a subsidy eligible
individual (as defined in section 1395w–114 (a)(3) of this title),
section 1320a–7a (i)(6)(A) of this title shall be applied without
regard to clauses (ii) and (iii) of that section); and
(H)
any remuneration between a health center entity described under clause
(i) or (ii) of section 1396d (l)(2)(B) of this title and any individual
or entity providing goods, items, services, donations, loans, or a
combination thereof, to such health center entity pursuant to a
contract, lease, grant, loan, or other agreement, if such agreement
contributes to the ability of the health center entity to maintain or
increase the availability, or enhance the quality, of services provided
to a medically underserved population served by the health center
entity.
(c) False statements or representations with respect to condition or operation of institutions
Whoever
knowingly and willfully makes or causes to be made, or induces or seeks
to induce the making of, any false statement or representation of a
material fact with respect to the conditions or operation of any
institution, facility, or entity in order that such institution,
facility, or entity may qualify (either upon initial certification or
upon recertification) as a hospital, critical access hospital, skilled
nursing facility, nursing facility, intermediate care facility for the
mentally retarded, home health agency, or other entity (including an
eligible organization under section 1395mm (b) of this title) for which
certification is required under subchapter XVIII of this chapter or a
State health care program (as defined in section 1320a–7 (h) of this
title), or with respect to information required to be provided under
section 1320a–3a of this title, shall be guilty of a felony and upon
conviction thereof shall be fined not more than $25,000 or imprisoned
for not more than five years, or both.
(d) Illegal patient admittance and retention practices
Whoever knowingly and willfully—
(1)
charges, for any service provided to a patient under a State plan
approved under subchapter XIX of this chapter, money or other
consideration at a rate in excess of the rates established by the State
(or, in the case of services provided to an individual enrolled with a
medicaid managed care organization under subchapter XIX of this chapter
under a contract under section 1396b (m) of this title or under a
contractual, referral, or other arrangement under such contract, at a
rate in excess of the rate permitted under such contract), or
(2)
charges, solicits, accepts, or receives, in addition to any amount
otherwise required to be paid under a State plan approved under
subchapter XIX of this chapter, any gift, money, donation, or other
consideration (other than a charitable, religious, or philanthropic
contribution from an organization or from a person unrelated to the
patient)—
(A) as a precondition of admitting a patient to a hospital,
nursing facility, or intermediate care facility for the mentally
retarded, or
(B) as a requirement for the patient's continued stay in such a facility,
when the cost of the services provided therein to the patient is paid for (in whole or in part) under the State plan,
shall
be guilty of a felony and upon conviction thereof shall be fined not
more than $25,000 or imprisoned for not more than five years, or both.
(e) Violation of assignment terms
Whoever accepts assignments
described in section 1395u (b)(3)(B)(ii) of this title or agrees to be
a participating physician or supplier under section 1395u (h)(1) of
this title and knowingly, willfully, and repeatedly violates the term
of such assignments or agreement, shall be guilty of a misdemeanor and
upon conviction thereof shall be fined not more than $2,000 or
imprisoned for not more than six months, or both.
(f) "Federal health care program" defined
For purposes of this section, the term "Federal health care program" means—
(1)
any plan or program that provides health benefits, whether directly,
through insurance, or otherwise, which is funded directly, in whole or
in part, by the United States Government (other than the health
insurance program under chapter 89 of title 5); or
(2) any State health care program, as defined in section 1320a–7 (h) of this title.
