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2468

Enforcement Actions under current Section 1128B(a)(6) of the Social Security Act

April 1, 1998

MEMORANDUM FOR ALL UNITED STATES ATTORNEYS
All Assistant United States Attorneys
Chief, Fraud Section, Criminal Division
All Prosecuting Attorneys, Fraud Section, Criminal Division

FROM:     John C. Keeney
          Acting Assistant Attorney General
          Criminal Division

          Donna A. Bucella
          Director
          Executive Office for the United States Attorneys
SUBJECT: Enforcement Actions under current Section 1128B(a)(6) of the Social Security Act.

By memorandum dated February 25, 1998, you were advised that the Department was in the process of determining whether to defend the constitutionality of current Section 1128B(a)(6) of the Social Security Act, as enacted by Section 4734 of the Balanced Budget Act. (The February 25, 1998 Memorandum had generally used an informal shorthand reference to "Section 4734", but we will refer to it by its proper statutory citation here.) The language of current Section 1128B(a)(6) of the Social Security Act, which is to be codified at 42 U.S.C. §  1320a-7b(6) (Supp. III 1997), criminalizes the conduct of anyone who "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 [Medicaid benefits], if disposing of the assets results in the imposition of a period of ineligibility for such assistance under section 1396p(c) of this title." You were advised to temporarily su spend initiation of investigations and prosecutions under current Section 1128B(a)(6) of the Social Security Act.

The purpose of this memorandum is to advise you that the Attorney General has decided, and informed Congress, that she will not defend the constitutionality of current Section 1128B(a)(6) of the Social Security Act nor will she enforce that Section. Accordingly, no investigations or prosecutions should be initiated under current Section 1128B(a)(6) of the Social Security Act, and if any have begun, they should immediately cease.

[updated April 1998]