42 U.S.C. § 1383a — Penalties for fraud

Page 2883 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1383a 103–296, set out as an Effective Date of 1994 Amendment note under section 401 of this title.] [Amendment by Pub. L. 103–66 effective with respect to calendar quarters beginning on or after Apr. 1, 1994, with special rule for States whose legislature meets bi- ennially, and does not have regular session scheduled in calendar year 1994, see section 13741(c) of Pub. L. 103–66, set out as an Effective Date of 1993 Amendment note under section 303 of this title.] [Amendment by Pub. L. 99–603 effective Oct. 1, 1987, see section 121(c)(2) of Pub. L. 99–603, set out as an Ef- fective Date of 1986 Amendment note under section 502 of this title.] REIMBURSEMENT FOR ERRONEOUS STATE SUPPLE- MENTARY PAYMENTS; AUTHORIZATION OF APPROPRIA- TIONS Pub. L. 95–216, title IV, § 405, Dec. 20, 1977, 91 Stat. 1564, provided that: ‘‘(a) Notwithstanding any other provision of law, the Secretary of Health, Education, and Welfare [now Health and Human Services] is authorized and directed to pay to each State an amount equal to the amount expended by such State for erroneous supplementary payments to aged, blind, or disabled individuals when- ever, and to the extent to which, the Secretary through an audit by the Department of Health, Education, and Welfare [now Health and Human Services] which has been reviewed and concurred in by the Inspector Gen- eral of such department determines that— ‘‘(1) such amount was paid by such State as a sup- plementary payment during the calendar year 1974 pursuant to an agreement between the State and the Secretary required by section 212 of the Act entitled ‘An Act to extend the Renegotiation Act of 1951 for one year, and for other purposes’, approved July 9, 1973, [set out as a note under section 1382 of this title], or such amount was paid by such State as an optional State supplementation, as defined in section 1616 of the Social Security Act [42 U.S.C. 1382], during the calendar year 1974, ‘‘(2) the erroneous payments were the result of good faith reliance by such State upon erroneous or incom- plete information supplied by the Department of Health, Education, and Welfare [now Health and Human Services], through the State data exchange, or good faith reliance upon incorrect supplemental security income benefit payments made by such de- partment, and ‘‘(3) recovery of the erroneous payments by such State would be impossible or unreasonable. ‘‘(b) There are authorized to be appropriated such sums as are necessary to carry out the provisions of this section.’’ § 1383a. Penalties for fraud (a) In general Whoever— (1) knowingly and willfully makes or causes to be made any false statement or representa- tion of a material fact in any application for any benefit under this subchapter, (2) at any time knowingly and willfully makes or causes to be made any false state- ment or representation of a material fact for use in determining rights to any such benefit, (3) having knowledge of the occurrence of any event affecting (A) his initial or continued right to any such benefit, or (B) the initial or continued right to any such benefit of any other individual in whose behalf he has applied for or is receiving such benefit, conceals or fails to disclose such event with an intent fraudulently to secure such benefit either in a greater amount or quantity than is due or when no such benefit is authorized, (4) having made application to receive any such benefit for the use and benefit of another and having received it, knowingly and will- fully converts such benefit or any part thereof to a use other than for the use and benefit of such other person, or (5) conspires to commit any offense de- scribed in any of paragraphs (1) through (3), shall be fined under title 18, imprisoned not more than 5 years, or both, except that in the case of a person who receives a fee or other in- come for services performed in connection with any determination with respect to benefits under this subchapter (including a claimant rep- resentative, translator, or current or former em- ployee of the Social Security Administration), or who is a physician or other health care pro- vider who submits, or causes the submission of, medical or other evidence in connection with any such determination, such person shall be guilty of a felony and upon conviction thereof shall be fined under title 18, or imprisoned for not more than ten years, or both. (b) Restitution (1) Any Federal court, when sentencing a de- fendant convicted of an offense under subsection (a), may order, in addition to or in lieu of any other penalty authorized by law, that the de- fendant make restitution to the Commissioner of Social Security, in any case in which such of- fense results in— (A) the Commissioner of Social Security making a benefit payment that should not have been made, or (B) an individual suffering a financial loss due to the defendant’s violation of subsection (a) in his or her capacity as the individual’s representative payee appointed pursuant to section 1383(a)(2) of this title. (2) Sections 3612, 3663, and 3664 of title 18 shall apply with respect to the issuance and enforce- ment of orders of restitution under this sub- section. In so applying such sections, the Com- missioner of Social Security shall be considered the victim. (3) If the court does not order restitution, or orders only partial restitution, under this sub- section, the court shall state on the record the reasons therefor. (4)(A) Except as provided in subparagraph (B), funds paid to the Commissioner of Social Secu- rity as restitution pursuant to a court order shall be deposited as miscellaneous receipts in the general fund of the Treasury. (B) In the case of funds paid to the Commis- sioner of Social Security pursuant to paragraph (1)(B), the Commissioner of Social Security shall certify for payment to the individual de- scribed in such paragraph an amount equal to the lesser of the amount of the funds so paid or the individual’s outstanding financial loss as de- scribed in such paragraph, except that such amount may be reduced by any overpayment of benefits owed under this subchapter, subchapter II, or subchapter VIII by the individual. (c) Prohibition on certification as representative payee Any person or entity convicted of a violation of subsection (a) of this section or of section 408 Page 2884 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 1383b of this title may not be certified as a representa- tive payee under section 1383(a)(2) of this title. (Aug. 14, 1935, ch. 531, title XVI, § 1632, as added Pub. L. 92–603, title III, § 301, Oct. 30, 1972, 86 Stat. 1478; amended Pub. L. 98–460, § 16(c)(1), Oct. 9, 1984, 98 Stat. 1810; Pub. L. 103–296, title II, § 206(c)(1), (2), Aug. 15, 1994, 108 Stat. 1513; Pub. L. 108–203, title II, § 209(c), Mar. 2, 2004, 118 Stat. 515; Pub. L. 114–74, title VIII, § 813(a)(3), (b)(3), Nov. 2, 2015, 129 Stat. 603.) Editorial Notes AMENDMENTS 2015—Subsec. (a). Pub. L. 114–74, § 813(b)(3), inserted before period at end of concluding provisions ‘‘, except that in the case of a person who receives a fee or other income for services performed in connection with any determination with respect to benefits under this sub- chapter (including a claimant representative, trans- lator, or current or former employee of the Social Se- curity Administration), or who is a physician or other health care provider who submits, or causes the sub- mission of, medical or other evidence in connection with any such determination, such person shall be guilty of a felony and upon conviction thereof shall be fined under title 18, or imprisoned for not more than ten years, or both’’. Subsec. (a)(5). Pub. L. 114–74, § 813(a)(3), added par. (5). 2004—Subsec. (b). Pub. L. 108–203, § 209(c)(2), added subsec. (b). Former subsec. (b) redesignated (c). Subsec. (c). Pub. L. 108–203, § 209(c)(1), (3), redesig- nated subsec. (b) as (c), struck out ‘‘(2)’’ before ‘‘Any person’’, and struck out par (1) which read as follows: ‘‘If a person or entity violates subsection (a) of this sec- tion in the person’s or entity’s role as, or in applying to become, a representative payee under section 1383(a)(2) of this title on behalf of another individual (other than the person’s eligible spouse), and the viola- tion includes a willful misuse of funds by the person or entity, the court may also require that full or partial restitution of funds be made to such other individual.’’ 1994—Subsec. (a). Pub. L. 103–296, § 206(c)(1), inserted closing provisions and struck out former closing provi- sions which read as follows: ‘‘shall be guilty of a mis- demeanor and upon conviction thereof shall be fined not more than $1,000 or imprisoned for not more than one year, or both.’’ Subsec. (b). Pub. L. 103–296, § 206(c)(2), amended sub- sec. (b) generally. Prior to amendment, subsec. (b) read as follows: ‘‘(b)(1) Any person or other entity who is convicted of a violation of any of the provisions of paragraphs (1) through (4) of subsection (a) of this section, if such vio- lation is committed by such person or entity in his role as, or in applying to become, a payee under section 1383(a)(2) of this title on behalf of another individual (other than such person’s eligible spouse), in lieu of the penalty set forth in subsection (a) of this section— ‘‘(A) upon his first such conviction, shall be guilty of a misdemeanor and shall be fined not more than $5,000 or imprisoned for not more than one year, or both; and ‘‘(B) upon his second or any subsequent such con- viction, shall be guilty of a felony and shall be fined not more than $25,000 or imprisoned for not more than five years, or both. ‘‘(2) In any case in which the court determines that a violation described in paragraph (1) includes a willful misuse of funds by such person or entity, the court may also require that full or partial restitution of such funds be made to the individual for whom such person or entity was the certified payee. ‘‘(3) Any person or entity convicted of a felony under this section or under section 408 of this title may not be certified as a payee under section 1383(a)(2) of this title.’’ 1984—Pub. L. 98–460 designated existing provisions as subsec. (a) and added subsec. (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2004 AMENDMENT Amendment by Pub. L. 108–203 applicable with re- spect to violations occurring on or after Mar. 2, 2004, see section 209(d) of Pub. L. 108–203, set out as a note under section 408 of this title. EFFECTIVE DATE OF 1994 AMENDMENT Pub. L. 103–296, title II, § 206(c)(3), Aug. 15, 1994, 108 Stat. 1514, provided that: ‘‘The amendments made by this subsection [amending this section] shall apply to conduct occurring on or after October 1, 1994.’’ EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–460 effective Oct. 9, 1984, and applicable with respect to violations occurring on or after such date, see section 16(d) of Pub. L. 98–460, set out as a note under section 405 of this title. EFFECTIVE DATE Pub. L. 92–603, title III, § 301, Oct. 30, 1972, 86 Stat. 1465, provided that this section is effective Jan. 1, 1974. APPLICATION TO NORTHERN MARIANA ISLANDS For applicability of this section to the Northern Mar- iana Islands, see section 502(a)(1) of the Covenant to Es- tablish a Commonwealth of the Northern Mariana Is- lands in Political Union with the United States of America and Proc. No. 4534, Oct. 24, 1977, 42 F.R. 6593, set out as notes under section 1801 of Title 48, Terri- tories and Insular Possessions. PUERTO RICO, GUAM, AND VIRGIN ISLANDS Enactment of provisions of Pub. L. 92–603, eff. Jan. 1, 1974, not applicable to Puerto Rico, Guam, and the Vir- gin Islands, see section 303(b) of Pub. L. 92–603, set out as a note under section 301 of this title. § 1383b. Administration (a) Authority of Commissioner Subject to subsection (b), the Commissioner of Social Security may make such administrative and other arrangements (including arrange- ments for the determination of blindness and disability under section 1382c(a)(2) and (3) of this title in the same manner and subject to the same conditions as provided with respect to dis- ability determinations under section 421 of this title) as may be necessary or appropriate to carry out the Commissioner’s functions under this subchapter. (b) Examination to determine blindness In determining, for purposes of this sub- chapter, whether an individual is blind, there shall be an examination of such individual by a physician skilled in the diseases of the eye or by an optometrist, whichever the individual may select. (c) Notification of review (1) In any case in which the Commissioner of Social Security initiates a review under this subchapter, similar to the continuing disability reviews authorized for purposes of subchapter II under section 421(i) of this title, the Commis- sioner of Social Security shall notify the indi- vidual whose case is to be reviewed in the same manner as required under section 421(i)(4) of this title. (2) For suspension of continuing disability re- views and other reviews under this subchapter similar to reviews under section 421 of this title