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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] |