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U.S. Code as of:
01/19/04
Section 1320a-8. Civil monetary penalties and assessments for subchapters II, VIII and XVI
(a) False statements or representations of material fact;
proceedings to exclude
(1) Any person (including an organization, agency, or other
entity) who makes, or causes to be made, a statement or
representation of a material fact for use in determining any
initial or continuing right to or the amount of -
(A) monthly insurance benefits under subchapter II of this
chapter,
(B) benefits or payments under subchapter VIII of this chapter,
or
(C) benefits or payments under subchapter XVI of this chapter,
that the person knows or should know is false or misleading or
knows or should know omits a material fact or makes such a
statement with knowing disregard for the truth shall be subject to,
in addition to any other penalties that may be prescribed by law, a
civil money penalty of not more than $5,000 for each such statement
or representation. Such person also shall be subject to an
assessment, in lieu of damages sustained by the United States
because of such statement or representation, of not more than twice
the amount of benefits or payments paid as a result of such a
statement or representation. In addition, the Commissioner of
Social Security may make a determination in the same proceeding to
recommend that the Secretary exclude, as provided in section
1320a-7 of this title, such a person who is a medical provider or
physician from participation in the programs under subchapter XVIII
of this chapter.
(2) For purposes of this section, a material fact is one which
the Commissioner of Social Security may consider in evaluating
whether an applicant is entitled to benefits under subchapter II of
this chapter or subchapter VIII of this chapter, or eligible for
benefits or payments under subchapter XVI of this chapter.
(b) Initiation of proceedings; hearing; sanctions
(1) The Commissioner of Social Security may initiate a proceeding
to determine whether to impose a civil money penalty or assessment,
or whether to recommend exclusion under subsection (a) of this
section only as authorized by the Attorney General pursuant to
procedures agreed upon by the Commissioner of Social Security and
the Attorney General. The Commissioner of Social Security may not
initiate an action under this section with respect to any violation
described in subsection (a) of this section later than 6 years
after the date the violation was committed. The Commissioner of
Social Security may initiate an action under this section by
serving notice of the action in any manner authorized by Rule 4 of
the Federal Rules of Civil Procedure.
(2) The Commissioner of Social Security shall not make a
determination adverse to any person under this section until the
person has been given written notice and an opportunity for the
determination to be made on the record after a hearing at which the
person is entitled to be represented by counsel, to present
witnesses, and to cross-examine witnesses against the person.
(3) In a proceeding under this section which -
(A) is against a person who has been convicted (whether upon a
verdict after trial or upon a plea of guilty or nolo contendere)
of a Federal or State crime charging fraud or false statements;
and
(B) involves the same transaction as in the criminal action;
the person is estopped from denying the essential elements of the
criminal offense.
(4) The official conducting a hearing under this section may
sanction a person, including any party or attorney, for failing to
comply with an order or procedure, for failing to defend an action,
or for such other misconduct as would interfere with the speedy,
orderly, or fair conduct of the hearing. Such sanction shall
reasonably relate to the severity and nature of the failure or
misconduct. Such sanction may include -
(A) in the case of refusal to provide or permit discovery,
drawing negative factual inference or treating such refusal as an
admission by deeming the matter, or certain facts, to be
established;
(B) prohibiting a party from introducing certain evidence or
otherwise supporting a particular claim or defense;
(C) striking pleadings, in whole or in part;
(D) staying the proceedings;
(E) dismissal of the action;
(F) entering a default judgment;
(G) ordering the party or attorney to pay attorneys' fees and
other costs caused by the failure or misconduct; and
(H) refusing to consider any motion or other action which is
not filed in a timely manner.
(c) Amount or scope of penalties, assessments, or exclusions
In determining pursuant to subsection (a) of this section the
amount or scope of any penalty or assessment, or whether to
recommend an exclusion, the Commissioner of Social Security shall
take into account -
(1) the nature of the statements and representations referred
to in subsection (a) of this section and the circumstances under
which they occurred;
(2) the degree of culpability, history of prior offenses, and
financial condition of the person committing the offense; and
(3) such other matters as justice may require.
(d) Judicial review
(1) Any person adversely affected by a determination of the
Commissioner of Social Security under this section may obtain a
review of such determination in the United States Court of Appeals
for the circuit in which the person resides, or in which the
statement or representation referred to in subsection (a) of this
section was made, by filing in such court (within 60 days following
the date the person is notified of the Commissioner's
determination) a written petition requesting that the determination
be modified or set aside. A copy of the petition shall be forthwith
transmitted by the clerk of the court to the Commissioner of Social
Security, and thereupon the Commissioner of Social Security shall
file in the court the record in the proceeding as provided in
section 2112 of title 28. Upon such filing, the court shall have
jurisdiction of the proceeding and of the question determined
therein, and shall have the power to make and enter upon the
pleadings, testimony, and proceedings set forth in such record a
decree affirming, modifying, remanding for further consideration,
or setting aside, in whole or in part, the determination of the
Commissioner of Social Security and enforcing the same to the
extent that such order is affirmed or modified. No objection that
has not been urged before the Commissioner of Social Security shall
be considered by the court, unless the failure or neglect to urge
such objection shall be excused because of extraordinary
circumstances.
(2) The findings of the Commissioner of Social Security with
respect to questions of fact, if supported by substantial evidence
on the record considered as a whole, shall be conclusive in the
review described in paragraph (1). If any party shall apply to the
court for leave to adduce additional evidence and shall show to the
satisfaction of the court that such additional evidence is material
and that there were reasonable grounds for the failure to adduce
such evidence in the hearing before the Commissioner of Social
Security, the court may order such additional evidence to be taken
before the Commissioner of Social Security and to be made a part of
the record. The Commissioner of Social Security may modify such
findings as to the facts, or make new findings, by reason of
additional evidence so taken and filed, and the Commissioner of
Social Security shall file with the court such modified or new
findings, which findings with respect to questions of fact, if
supported by substantial evidence on the record considered as a
whole shall be conclusive, and the Commissioner's recommendations,
if any, for the modification or setting aside of the Commissioner's
original order.
(3) Upon the filing of the record and the Commissioner's original
or modified order with the court, the jurisdiction of the court
shall be exclusive and its judgment and decree shall be final,
except that the same shall be subject to review by the Supreme
Court of the United States, as provided in section 1254 of title
28.
(e) Compromise of money penalties and assessments; recovery; use of
funds recovered
(1) Civil money penalties and assessments imposed under this
section may be compromised by the Commissioner of Social Security
and may be recovered -
(A) in a civil action in the name of the United States brought
in United States district court for the district where the
statement or representation referred to in subsection (a) of this
section was made, or where the person resides, as determined by
the Commissioner of Social Security;
(B) by means of reduction in tax refunds to which the person is
entitled, based on notice to the Secretary of the Treasury as
permitted under section 3720A of title 31;
(C)(i) by decrease of any payment of monthly insurance benefits
under subchapter II of this chapter, notwithstanding section 407
of this title,
(ii) by decrease of any payment under subchapter VIII of this
chapter to which the person is entitled, or
(iii) by decrease of any payment under subchapter XVI of this
chapter for which the person is eligible, notwithstanding section
407 of this title, as made applicable to subchapter XVI of this
chapter by reason of section 1383(d)(1) of this title;
(D) by authorities provided under the Debt Collection Act of
1982, as amended, to the extent applicable to debts arising under
this chapter;
(E) by deduction of the amount of such penalty or assessment,
when finally determined, or the amount agreed upon in compromise,
from any sum then or later owing by the United States to the
person against whom the penalty or assessment has been assessed;
or
(F) by any combination of the foregoing.
(2) Amounts recovered under this section shall be recovered by
the Commissioner of Social Security and shall be disposed of as
follows:
(A) In the case of amounts recovered arising out of a
determination relating to subchapter II of this chapter, the
amounts shall be transferred to the Managing Trustee of the
Federal Old-Age and Survivors Insurance Trust Fund or the Federal
Disability Insurance Trust Fund, as determined appropriate by the
Commissioner of Social Security, and such amounts shall be
deposited by the Managing Trustee into such Trust Fund.
(B) In the case of amounts recovered arising out of a
determination relating to subchapter VIII or XVI of this chapter,
the amounts shall be deposited by the Commissioner of Social
Security into the general fund of the Treasury as miscellaneous
receipts.
(f) Finality of determination respecting penalty, assessment, or
exclusion
A determination pursuant to subsection (a) of this section by the
Commissioner of Social Security to impose a penalty or assessment,
or to recommend an exclusion shall be final upon the expiration of
the 60-day period referred to in subsection (d) of this section.
Matters that were raised or that could have been raised in a
hearing before the Commissioner of Social Security or in an appeal
pursuant to subsection (d) of this section may not be raised as a
defense to a civil action by the United States to collect a penalty
or assessment imposed under this section.
(g) Notification of appropriate entities of finality of
determination
Whenever the Commissioner's determination to impose a penalty or
assessment under this section with respect to a medical provider or
physician becomes final, the Commissioner shall notify the
Secretary of the final determination and the reasons therefor, and
the Secretary shall then notify the entities described in section
1320a-7a(h) of this title of such final determination.
(h) Injunction
Whenever the Commissioner of Social Security has reason to
believe that any person has engaged, is engaging, or is about to
engage in any activity which makes the person subject to a civil
monetary penalty under this section, the Commissioner of Social
Security may bring an action in an appropriate district court of
the United States (or, if applicable, a United States court of any
territory) to enjoin such activity, or to enjoin the person from
concealing, removing, encumbering, or disposing of assets which may
be required in order to pay a civil monetary penalty and assessment
if any such penalty were to be imposed or to seek other appropriate
relief.
(i) Delegation of authority
(1) The provisions of subsections (d) and (e) of section 405 of
this title shall apply with respect to this section to the same
extent as they are applicable with respect to subchapter II of this
chapter. The Commissioner of Social Security may delegate the
authority granted by section 405(d) of this title (as made
applicable to this section) to the Inspector General for purposes
of any investigation under this section.
(2) The Commissioner of Social Security may delegate authority
granted under this section to the Inspector General.
(j) "State agency" defined
For purposes of this section, the term "State agency" shall have
the same meaning as in section 1320a-7a(i)(1) of this title.
(k) Liability of principal for acts of agents
A principal is liable for penalties and assessments under
subsection (a) of this section, and for an exclusion under section
1320a-7 of this title based on a recommendation under subsection
(a) of this section, for the actions of the principal's agent
acting within the scope of the agency.
(l) Protection of ongoing criminal investigations
As soon as the Inspector General, Social Security Administration,
has reason to believe that fraud was involved in the application of
an individual for monthly insurance benefits under subchapter II of
this chapter or for benefits under subchapter VIII or XVI of this
chapter, the Inspector General shall make available to the
Commissioner of Social Security information identifying the
individual, unless a United States attorney, or equivalent State
prosecutor, with jurisdiction over potential or actual related
criminal cases, certifies, in writing, that there is a substantial
risk that making the information so available in a particular
investigation or redetermining the eligibility of the individual
for such benefits would jeopardize the criminal prosecution of any
person who is a subject of the investigation from which the
information is derived.
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