Thursday, August 18, 2011
Elizabeth R. Sheyn has posted Toward a Specific Intent Requirement in White Collar Crime Statutes: How the Patient Protection and Affordable Care Act of 2010 Sheds Light on the 'General Intent Revolution' on SSRN. Here is the abstract:
The recent passage of the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010 (collectively, “ACA”), has altered the landscape of health care and health insurance. However, it has also served to highlight the revolution in the intent requirement for white collar crimes. In particular, the ACA lowers the intent requirement for several health care fraud statutes from specific to general intent, which is consistent with the federal courts’ recent trend of not requiring proof of the defendant’s knowledge of the law before finding a violation of a particular statute proscribing a so-called white collar crime. In contrast to some of the ACA’s other, substantive provisions, the constitutionality of these provisions has not been considered by the federal courts or evaluated by scholars.
This Article describes this “intent revolution” against the backdrop of the ACA and other white collar crime statutes and offers some thoughts on why and how it should be curbed, particularly in the context of white collar offenses. First, the Article provides a background understanding of white collar crime statutes, focusing specifically on the mens rea requirement component. Second, it delves in depth into health care fraud and describes typical health care fraud remedies. Third, the Article outlines the relevant portions of the ACA touching briefly on very recent challenges to other aspects of the ACA, such as the individual mandate requirement. Finally, the Article analyzes the dangers of a lowered intent requirement broadly and in the context of the ACA and provides a suggestion regarding how these dangers should be addressed with respect to the ACA’s problematic provisions.