42 U.S.C. § 1320a–7c: Fraud and abuse control…

Summary

By January 1, 1997, the Secretary of Health and Human Services, through the HHS Office of Inspector General, together with the Attorney General, must create a program to fight fraud and abuse in health care. The program must bring federal, state, and local law enforcement together; run investigations, audits, reviews, and inspections of how health care is provided and paid for; help enforce sections 1320a–7, 1320a–7a, and 1320a–7b; and update safe harbors and issue advisory opinions and fraud alerts under section 1320a–7d. The Secretary and Attorney General must work with health plans and share data. They must publish guidelines for the program that explain how information is shared, protect patient privacy, and extend the liability protection in section 1320c–6(a) to those who give information. The HHS Inspector General keeps the authorities described in section 406(a)(3)–(9) of title 5 and other inspector general powers remain intact. The law also creates a public-private partnership of health plans, government agencies, law enforcement, anti-fraud groups, and others to detect and prevent waste, fraud, and abuse. The Secretary must hire a trusted third party (an entity that can do the work, meets conflict-of-interest rules, and other requirements) to run the partnership. The partnership must share and analyze data to spot bad billing patterns, find trends and vulnerabilities, refer likely crimes to authorities, give confidential feedback to plans, hold at least yearly meetings, train partners, and do other tasks the Secretary sets. The trusted third party must study substance use disorder billing within two years after December 27, 2020. An executive board with federal and private members will guide the partnership and meet at least once a year. The Secretary must report to Congress and post online by January 1, 2023, and every two years after, on the partnership’s work, any savings reported or found, other results, and a two-year plan. The partnership is funded from amounts already available for the program. The HHS Inspector General may keep reimbursements for investigation costs when ordered by a court or agreed to, and those funds are credited back to the proper appropriations and available for one year. For this law, “health plan” means a program that provides health benefits, including insurance policies, service benefit contracts, and HMO or prepaid plan memberships.

Title 42, §1320a–7c

The Public Health and Welfare, Source: USLM XML via OLRC

(a)Establishment of program

(1)In general

Not later than January 1, 1997, the Secretary, acting through the Office of the Inspector General of the Department of Health and Human Services, and the Attorney General shall establish a program—

(A)to coordinate Federal, State, and local law enforcement programs to control fraud and abuse with respect to health plans,

(B)to conduct investigations, audits, evaluations, and inspections relating to the delivery of and payment for health care in the United States,

(C)to facilitate the enforcement of the provisions of section 1320a–7, 1320a–7a, and 1320a–7b of this title and other statutes applicable to health care fraud and abuse, and

(D)to provide for the modification and establishment of safe harbors and to issue advisory opinions and special fraud alerts pursuant to section 1320a–7d of this title.

(2)Coordination with health plans

In carrying out the program established under paragraph (1), the Secretary and the Attorney General shall consult with, and arrange for the sharing of data with representatives of health plans.

(3)Guidelines

(A)In general

The Secretary and the Attorney General shall issue guidelines to carry out the program under paragraph (1). The provisions of section 553, 556, and 557 of title 5 shall not apply in the issuance of such guidelines.

(B)Information guidelines

(i)In general

Such guidelines shall include guidelines relating to the furnishing of information by health plans, providers, and others to enable the Secretary and the Attorney General to carry out the program (including coordination with health plans under paragraph (2)).

(ii)Confidentiality

Such guidelines shall include procedures to assure that such information is provided and utilized in a manner that appropriately protects the confidentiality of the information and the privacy of individuals receiving health care services and items.

(iii)Qualified immunity for providing information

The provisions of section 1320c–6(a) of this title (relating to limitation on liability) shall apply to a person providing information to the Secretary or the Attorney General in conjunction with their performance of duties under this section.

(4)Ensuring access to documentation

The Inspector General of the Department of Health and Human Services is authorized to exercise such authority described in paragraphs (3) through (9) of section 406(a) of title 5 as necessary with respect to the activities under the fraud and abuse control program established under this subsection.

(5)Authority of Inspector General

Nothing in this chapter shall be construed to diminish the authority of any Inspector General, including such authority as provided in chapter 4 of title 5.

(6)Public-private partnership for waste, fraud, and abuse detection

(A)In general

Under the program described in paragraph (1), there is established a public-private partnership (in this paragraph referred to as the “partnership”) of health plans, Federal and State agencies, law enforcement agencies, health care anti-fraud organizations, and any other entity determined appropriate by the Secretary (in this paragraph referred to as “partners”) for purposes of detecting and preventing health care waste, fraud, and abuse.

(B)Contract with trusted third party

In carrying out the partnership, the Secretary shall enter into a contract with a trusted third party for purposes of carrying out the duties of the partnership described in subparagraph (C).

(C)Duties of partnership

The partnership shall—

(i)provide technical and operational support to facilitate data sharing between partners in the partnership;

(ii)analyze data so shared to identify fraudulent and aberrant billing patterns;

(iii)conduct aggregate analyses of health care data so shared across Federal, State, and private health plans for purposes of detecting fraud, waste, and abuse schemes;

(iv)identify outlier trends and potential vulnerabilities of partners in the partnership with respect to such schemes;

(v)refer specific cases of potential unlawful conduct to appropriate governmental entities;

(vi)convene, not less than annually, meetings with partners in the partnership for purposes of providing updates on the partnership’s work and facilitating information sharing between the partners;

(vii)enter into data sharing and data use agreements with partners in the partnership in such a manner so as to ensure the partnership has access to data necessary to identify waste, fraud, and abuse while maintaining the confidentiality and integrity of such data;

(viii)provide partners in the partnership with plan-specific, confidential feedback on any aberrant billing patterns or potential fraud identified by the partnership with respect to such partner;

(ix)establish a process by which entities described in subparagraph (A) may enter the partnership and requirements such entities must meet to enter the partnership;

(x)provide appropriate training, outreach, and education to partners based on the results of data analyses described in clauses (ii) and (iii); and

(xi)perform such other duties as the Secretary determines appropriate.

(D)Substance use disorder treatment analysis

Not later than 2 years after December 27, 2020, the trusted third party with a contract in effect under subparagraph (B) shall perform an analysis of aberrant or fraudulent billing patterns and trends with respect to providers and suppliers of substance use disorder treatments from data shared with the partnership.

(E)Executive board

(i)Executive board composition

(I)In general

There shall be an executive board of the partnership comprised of representatives of the Federal Government and representatives of the private sector selected by the Secretary.

(II)Chairs

The executive board shall be co-chaired by one Federal Government official and one representative from the private sector.

(ii)Meetings

The executive board of the partnership shall meet at least once per year.

(iii)Executive board duties

The duties of the executive board shall include the following:

(I)Providing strategic direction for the partnership, including membership criteria and a mission statement.

(II)Communicating with the leadership of the Department of Health and Human Services and the Department of Justice and the various private health sector associations.

(F)Reports

Not later than January 1, 2023, and every 2 years thereafter, the Secretary shall submit to Congress and make available on the public website of the Centers for Medicare & Medicaid Services a report containing—

(i)a review of activities conducted by the partnership over the 2-year period ending on the date of the submission of such report, including any progress to any objectives established by the partnership;

(ii)any savings voluntarily reported by health plans participating in the partnership attributable to the partnership during such period;

(iii)any savings to the Federal Government attributable to the partnership during such period;

(iv)any other outcomes attributable to the partnership, as determined by the Secretary, during such period; and

(v)a strategic plan for the 2-year period beginning on the day after the date of the submission of such report, including a description of any emerging fraud and abuse schemes, trends, or practices that the partnership intends to study during such period.

(G)Funding

The partnership shall be funded by amounts otherwise made available to the Secretary for carrying out the program described in paragraph (1).

(H)Transitional provisions

To the extent consistent with this subsection, all functions, personnel, assets, liabilities, and administrative actions applicable on the date before December 27, 2020, to the National Fraud Prevention Partnership established on September 17, 2012, by charter of the Secretary shall be transferred to the partnership established under subparagraph (A) as of December 27, 2020.

(I)Nonapplicability of FACA

The provisions of the Federal Advisory Committee Act shall not apply to the partnership established by subparagraph (A).

(J)Implementation

Notwithstanding any other provision of law, the Secretary may implement the partnership established by subparagraph (A) by program instruction or otherwise.

(K)Definition

For purposes of this paragraph, the term “trusted third party” means an entity that—

(i)demonstrates the capability to carry out the duties of the partnership described in subparagraph (C);

(ii)complies with such conflict of interest standards determined appropriate by the Secretary; and

(iii)meets such other requirements as the Secretary may prescribe.

(b)Additional use of funds by Inspector General

(1)Reimbursements for investigations

The Inspector General of the Department of Health and Human Services is authorized to receive and retain for current use reimbursement for the costs of conducting investigations and audits and for monitoring compliance plans when such costs are ordered by a court, voluntarily agreed to by the payor, or otherwise.

(2)Crediting

Funds received by the Inspector General under paragraph (1) as reimbursement for costs of conducting investigations shall be deposited to the credit of the appropriation from which initially paid, or to appropriations for similar purposes currently available at the time of deposit, and shall remain available for obligation for 1 year from the date of the deposit of such funds.

(c)“Health plan” defined

For purposes of this section, the term “health plan” means a plan or program that provides health benefits, whether directly, through insurance, or otherwise, and includes—

(1)a policy of health insurance;

(2)a contract of a service benefit organization; and

(3)a membership agreement with a health maintenance organization or other prepaid health plan.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Federal Advisory Committee Act, referred to in subsec. (a)(6)(I), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, which was set out in the Appendix to Title 5, Government Organization and Employees, and was substantially repealed and restated in chapter 10 (§ 1001 et seq.) of Title 5 by Pub. L. 117–286, §§ 3(a), 7, Dec. 27, 2022, 136 Stat. 4197, 4361. For disposition of sections of the Act into chapter 10 of Title 5, see Disposition Table preceding section 101 of Title 5.

Amendments

2022—Subsec. (a)(4). Pub. L. 117–286, § 4(b)(78)(A), substituted “paragraphs (3) through (9) of section 406(a) of title 5” for “paragraphs (3) through (9) of section 6 of the Inspector General Act of 1978 (5 U.S.C. App.)”. Subsec. (a)(5). Pub. L. 117–286, § 4(b)(78)(B), substituted “chapter 4 of title 5.” for “the Inspector General Act of 1978 (5 U.S.C. App.).” 2020—Subsec. (a)(6). Pub. L. 116–260 added par. (6). 2010—Subsec. (a)(1)(C) to (E). Pub. L. 111–148 inserted “and” at end of subpar. (C), substituted period for “, and” at end of subpar. (D), and struck out subpar. (E) which read as follows: “to provide for the reporting and disclosure of certain final adverse actions against health care providers, suppliers, or practitioners pursuant to the data collection system established under section 1320a–7e of this title.”

Statutory Notes and Related Subsidiaries

Effective Date

of 2010 AmendmentAmendment by Pub. L. 111–148 effective on the first day after the final day of the transition period defined in section 6403(d)(5) of Pub. L. 111–148, see section 6403(d)(6) of Pub. L. 111–148, set out as a Transition Process;

Effective Date

of 2010 Amendment note under section 1320a–7e of this title.

§1320a–7c Fraud and Abuse Control Program

Summary

Title 42, §1320a–7c

Notes & Related Subsidiaries

Editorial Notes

References in Text

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Citations & Metadata