Archive for October, 2010

Section 701B

Chapter 15

(June 22, 1936, ch. 688, Sec. 2, 49 Stat. 1570; June 28, 1938, ch.795, Sec. 1, 52 Stat. 1215; Aug. 18, 1941, ch. 377, Sec. 1, 55Stat. 638; July 26, 1947, ch. 343, title II, Sec. 205(a), 61 Stat.501; Aug. 4, 1954, ch. 656, Sec. 7, 68 Stat. 668.)AMENDMENTS1954 – Act Aug. 4, 1954, repealed provisions conferring authorityon the Department of Agriculture under the direction of theSecretary of Agriculture to make preliminary examinations andsurveys and to prosecute works of improvement for runoff andwaterflow retardation and soil erosion prevention on the watershedsof rivers and other waterways.1941 – Act Aug. 18, 1941, reenacted without change portion ofsection preceding semicolon.1938 – Act June 28, 1938, reenacted without change portion ofsection preceding semicolon.CHANGE OF NAMEDepartment of War designated Department of the Army and title ofSecretary of War changed to Secretary of the Army by section 205(a)of act July 26, 1947, ch. 343, title II, 61 Stat. 501. Section205(a) of act July 26, 1947, was repealed by section 53 of act Aug.10, 1956, ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956,enacted “Title 10, Armed Forces” which in sections 3010 to 3013continued Department of the Army under administrative supervisionof Secretary of the Army.SAVINGS PROVISIONSection 7 of act Aug. 4, 1954, which amended this section byrepealing provisions relating to the Department of Agriculture,provides in part that: “(a) the authority of that Department ofAgriculture, under the direction of the Secretary, to prosecute theworks of improvement for runoff and waterflow retardation and soilerosion prevention authorized to be carried out by the Departmentby the act of December 22, 1944 (58 Stat. 887), as amended [section701a-1 of this title], and (b) the authority of the Secretary ofAgriculture to undertake emergency measures for runoff retardationand soil erosion prevention authorized to be carried out by section7 of the act of June 28, 1938 (52 Stat. 1215), as amended bysection 216 of the act of May 17, 1950 (64 Stat. 163) [section 701b-1 of this title], shall not be affected by the provisions of thissection.”RISK-BASED ANALYSIS METHODOLOGYPub. L. 104-303, title II, Sec. 202(h), Oct. 12, 1996, 110 Stat.3676, provided that:”(1) In general. – The Secretary shall enter into an agreementwith the National Academy of Sciences to conduct a study of theCorps of Engineers’ use of risk-based analysis for the evaluationof hydrology, hydraulics, and economics in flood damage reductionstudies. The study shall include -”(A) an evaluation of the impact of risk-based analysis onproject formulation, project economic justification, and minimumengineering and safety standards; and”(B) a review of studies conducted using risk-based analysis todetermine -”(i) the scientific validity of applying risk-based analysisin these studies; and”(ii) the impact of using risk-based analysis as it relatesto current policy and procedures of the Corps of Engineers.”(2) Report. – Not later than 18 months after the date of theenactment of this Act [Oct. 12, 1996], the Secretary shall submitto Congress a report on the results of the study under paragraph(1), as well as such recommendations as the Secretary considersappropriate.”(3) Limitation on use of methodology. – During the periodbeginning on the date of the enactment of this Act [Oct. 12, 1996]and ending 18 months after that date, if requested by a non-Federalinterest, the Secretary shall refrain from using any risk-basedtechnique required under the studies described in paragraph (1) forthe evaluation and design of a project.”(4) Authorization of appropriations. – There is authorized to beappropriated $250,000 to carry out this subsection.”",”33 U.S.C. no. 701b : US Code – Section 701B: Supervision of Secretary of the Army; reclamation projects unaffected

16 U.S.C. no. 669i : US Code – Section 669I: Rules and regulations Section 669I
The Secretary of the Interior is authorized to make rules andregulations for carrying out the provisions of this chapter.

(Sept. 2, 1937, ch. 899, Sec. 12, formerly Sec. 10, 50 Stat. 919;1939 Reorg. Plan No. II, Sec. 4(f), eff. July 1, 1939, 4 F.R. 2731,53 Stat. 1433; renumbered Sec. 12, Pub. L. 106-408, title I, Sec.112(1), Nov. 1, 2000, 114 Stat. 1766.)TRANSFER OF FUNCTIONSReorg. Plan No. II of 1939, set out in the Appendix to Title 5,Government Organization and Employees, transferred functions ofSecretary of Agriculture relating to conservation of wildlife,game, and migratory birds to Secretary of the Interior.

15 U.S.C. no. 1529 : US Code – Section 1529: Relinquishment of legislative jurisdiction over certain lands Section 1529
Notwithstanding any other law, the Secretary of Commerce,whenever the Secretary considers it desirable, may relinquish to aState, or to a Commonwealth, territory, or possession of the UnitedStates, all or part of the legislative jurisdiction of the UnitedStates over lands or interests under the Secretary’s control inthat State, Commonwealth, territory, or possession. Relinquishmentof legislative jurisdiction under this section may be accomplished -(1) by filing with the Governor (or, if none exists, with thechief executive officer) of the State, Commonwealth, territory,or possession concerned a notice of relinquishment to take effectupon acceptance of the notice; or(2) as required by the laws of the State, Commonwealth,territory, or possession.

(Pub. L. 98-623, title IV, Sec. 406, Nov. 8, 1984, 98 Stat. 3409.)

In Fiscal Year 2010, the U.S. Department of Justice recovered over $3.1 billion of America’s stolen money largely due to valiant whistleblowers and the federal False Claims Act, According to the Consumer Interest Group,  Taxpayer’s Against Fraud.

Over 80 percent of all successful False Claims Act recoveries are brought to the government by whistleblowers and their lawyers, making the law the most important tool the U.S. Government has in the war against fraud

80 percent health:
Approximately 80 percent of all fraud recoveries under the False Claims Act occur in health care, but significant amounts of fraud are also found in defense, education, transportation, and the oil and gas industries.
 
28 State False Claims Acts:
In order to increase the amount of money coming back to them, and to initiate their own recoveries, 28 states and the District of Columbia have now passed their own versions of the federal False Claims Act.

A few significant qui tam cases for Fiscal Year 2010 include the following:
 

• Allergan -  $600 M -($225 million to resolve civil allegations and a $375M criminal fine.)  9/1/2010 - Off-label marketing practices involving Botox
• AstraZeneca - $520 M-  4/27/2010 - Illegal marketing - anti-psychotic drug Seroquel 
• Novartis Pharmaceuticals
   $422.5 million ($237.5 M – Civil allegations and a $185 M criminal fine)  9/30/2010
  Unapproved promotion of Trileptal 
• Forest Laboratories -  $313 M – ($149M -Civil claims, a $150M criminal fine, and $14 M forfeiture.   9/15/2010
  Unlawful marketing - Levothroid and promoting Celexa and Lexapro for pediatric use
• Elan Corporation -  $203.5 M - 7/15/2010 – improper marketing of Zonegran
• Teva Pharmaceuticals - $169 M -  7/26/2010 -  Inflated prices reported to  Medicaid
• WellCare Health Plans -  $137.5 M- 8/9/2010 - Defrauded Medicare and Medicaid programs in several states
• Health Alliance of Greater Cincinnati and Christ Hospital -  $108 M -  5/21/2010
  Kickbacks to doctors in exchange for referring cardiac patients

A patient recruiter for a Houston-based home health care company pleaded guilty to a $5.2 million Medicare fraud scheme. 

Sammie Wilson, pleaded guilty to conspiracy to commit health care fraud. According to court documents, Family Healthcare Group (Family Group) was supposed to provide skilled nursing to Medicare beneficiaries. However, the owner hired Wilson and others to recruit Medicare beneficiaries for the purposes of filing false claims with Medicare.

Court documents show that Family Group used the Medicare beneficiary numbers to submit false claims to Medicare for skilled nursing. In return, Wilson was paid kickbacks for referring beneficiaries for services that she knew were not medically necessary and/or not rendered.

Fraud of any magnitude is not acceptable. Unfortunately, health care fraud, involving Medicare is too common. Concerned citizens with information pertaining to Medicare fraud, should report the fraud immediately. According to the recent numbers, more whistleblowers are stepping forward in reporting fraud.

In a qui tam claim, a whistleblower may be entitled to 15 - 30 percent- of what the government recovers which includes damages for the false bills, tripled, plus civil penalties of from $5,000 to $10,000 per false claim.

Click on the following link to read more from the DOJ on the Houston-area Patient Recruiter Pleads Guilty in a $5.2 Million Medicare Fraud Scheme

12 U.S.C. no. 5015 : US Code – Section 5015: Study and report on funds availability Section 5015
(a) StudyIn order to evaluate the implementation and the impact of thischapter, the Board shall conduct a study of -(1) the percentage of total checks cleared in which the papercheck is not returned to the paying bank;(2) the extent to which banks make funds available to consumersfor local and nonlocal checks prior to the expiration of maximumhold periods;(3) the length of time within which depositary banks learn ofthe nonpayment of local and nonlocal checks;(4) the increase or decrease in check-related losses over thestudy period; and(5) the appropriateness of the time periods and amount limitsapplicable under sections 4002 and 4003 of this title, as ineffect on October 28, 2003.(b) Report to CongressBefore the end of the 30-month period beginning on the effectivedate of this chapter, the Board shall submit a report to theCongress containing the results of the study conducted under thissection, together with recommendations for legislative action.

(Pub. L. 108-100, Sec. 16, Oct. 28, 2003, 117 Stat. 1190.)REFERENCES IN TEXTThis chapter, referred to in subsec. (a), was in the original”this Act”, meaning Pub. L. 108-100, Oct. 28, 2003, 117 Stat. 1177,which is classified generally to this chapter. For completeclassification of this Act to the Code, see Short Title note setout under section 5001 of this title and Tables.The effective date of this chapter, referred to in subsec. (b),is at the end of the 12-month period beginning on Oct. 28, 2003,except as otherwise specifically provided in this chapter, seesection 20 of Pub. L. 108-100, set out as an Effective Date noteunder section 5001 of this title.

JUDICIARY IN DEPTH Sentencing Commission Hearings Continue Debate on Guidelines

Agencies and hirers need to be ready for new Agency Workers Regulations which come into force on 1 October 2011

THE Chinese authorities’ condemnation of the Nobel committee’s selection of Liu Xiaobo, the jailed political activist, as the winner of the 2010 Peace Prize inadvertently illustrates why human rights are worth defending.

The authorities assert that no one has the right to interfere in China’s internal affairs. But they are wrong: international human rights law and standards are above the nation-state, and the world community has a duty to ensure they are respected.

The modern state system evolved from the idea of national sovereignty established by the Peace of Westphalia in 1648. At the time, sovereignty was assumed to be embodied in an autocratic ruler.

But ideas about sovereignty have changed over time. The American Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen replaced the control of the autocrat with the sovereignty of the people as the source of national power and legitimacy.

The idea of sovereignty changed again during the last century, as the world moved from nationalism to internationalism. The United Nations, founded in the wake of two disastrous world wars, committed member states to resolve disputes by peaceful means and defined the fundamental rights of all people in the Universal Declaration of Human Rights. The nation-state, the declaration said, would no longer have ultimate, unlimited power.

Today, universal human rights provide a check on arbitrary majorities around the world, whether they are democracies or not. A majority in a parliament cannot decide to harm the rights of a minority, nor vote for laws that undermine human rights. And even though China is not a constitutional democracy, it is a member of the United Nations, and it has amended its Constitution to comply with the Declaration of Human Rights.

However, Mr. Liu’s imprisonment is clear proof that China’s criminal law is not in line with its Constitution. He was convicted of “spreading rumors or slander or any other means to subvert the state power or overthrow the socialist system.” But in a world community based on universal human rights, it is not a government’s task to stamp out opinions and rumors. Governments are obliged to ensure the right to free expression — even if the speaker advocates a different social system.

These are rights that the Nobel committee has long upheld by honoring those who struggle to protect them with the Peace Prize, including Andrei Sakharov for his struggle against human rights abuses in the Soviet Union, and the Rev. Dr. Martin Luther King Jr. for his fight for civil rights in the United States.

Not surprisingly, the Chinese government has harshly criticized the award, claiming that the Nobel committee unlawfully interfered with its internal affairs and humiliated it in the eyes of the international public. On the contrary, China should be proud that it has become powerful enough to be the subject of debate and criticism.

Interestingly, the Chinese government is not the only one to criticize the Nobel committee. Some people have said that giving the prize to Mr. Liu may actually worsen conditions for human-rights advocates in China.

But this argument is illogical: it leads to the conclusion that we best promote human rights by keeping quiet. If we keep quiet about China, who will be the next country to claim its right to silence and non-interference? This approach would put us on a path toward undermining the Universal Declaration and the basic tenets of human rights. We must not and cannot keep quiet. No country has a right to ignore its international obligations.

China has every reason to be proud of what it has achieved in the last 20 years. We want to see that progress continue, and that is why we awarded the Peace Prize to Mr. Liu. If China is to advance in harmony with other countries and become a key partner in upholding the values of the world community, it must first grant freedom of expression to all its citizens.

It is a tragedy that a man is being imprisoned for 11 years merely because he expressed his opinion. If we are to move toward the fraternity of nations of which Alfred Nobel spoke, then universal human rights must be our touchstone. Thorbjorn Jagland, Why We Gave Liu Xiaobo a Nobel, New York Times, Oct. 23, 2010.

For many years after market reform started in the early 1980s, the people and government of the People’s Republic waited impatiently for their first Nobel Prize to glorify their scientific and literary advancements. But the Nobel they wanted never came, and the Nobel Prize that came is not wanted – at least, not by the government. Twenty-one years after the Dalai Lama was awarded the Nobel Peace Prize, the Norwegian Nobel Committee announced this month that Liu Xiaobo was this year’s winner. Beijing officials reacted in a familiar and angry manner, denouncing the decision as a desecration of the Nobel spirit and putting human rights activists and China’s cyberspace under even tighter surveillance.

. . . . .

A remarkable man, Liu indisputably deserves the prize for his ceaseless struggle.   for nonviolent democratic reform over the past two decades. His winning of the prize adds pressure on Beijing to stop its human rights violations. While I believe the combination of domestic and international pressure will eventually result in more political openness and respect for basic human rights, the democratic future of the People’s Republic resides in its people alone: they will have to want democracy, believe in democracy and act to advance democracy. Towards this goal, democracy advocates like Liu play an indispensable role by providing an impelling and practical vision of how a democratic polity will not impede, but advance, prosperity and stability in China. Critically, however, they must also demonstrate their patriotic bona fides, which naturally extend to some fundamental concerns about national sovereignty and territorial integrity with regard to Tibet and Taiwan.

In today’s China, having foreign associations can create doubts about a person’s devotion to his or her country – a fact I am acutely aware of after being asked many times by my friends and family to reaffirm my loyalties. Such suspicion stems from the nation’s painful experience with Western and Japanese imperialism, which is frequently played up by the regime to shore up its legitimacy. True, the Communist Party itself relied heavily on Soviet assistance for decades, but their path to power is also stained with blood and violence. However, today’s democracy advocates, having no other choice but to resort to persuasion and activism, cannot ignore the charge that they are more beholden to their international supporters than to their own people.

In this age of global connectedness, who is free of foreign influence?   . . . . The notion of zhong ti xi yong (Chinese learning as the essence and Western learning for its usefulness) was popularised in the late 19th century, yet when it is promoted or sponsored by foreign organisations or governments, it takes on a different meaning and can have dangerous implications for those who advance it.

Liu has been accused by the government and even some prodemocracy intellectuals of championing wholesale Westernisation in 1988 and refusing to back down from it. His alleged support for the Iraq war under the George W. Bush administration sent out another wrong message that, if amplified and extrapolated, might weaken the cause of democracy in the eyes of ordinary Chinese people.

Exiled, jailed or under vigilant watch by the government, many Chinese activists are forced to look overseas for information, platforms, funds and other resources. This dilemma adds to the difficulties of performing a balancing act between short term needs and a long-term perspective. . . . .

There is a lesson here for foreign governments and international organisations as well. The road to China’s democratisation promises to be tortuous and long, and their continued support is important in encouraging democracy loving Chinese. But such support should be strictly limited to the moral and diplomatic levels, or take shape – through official channels – in specific programmes or projects aimed at enhancing good governance, rights protection, judicial reform, and so forth. The Norwegian Nobel Committee may have done the right thing in putting the awful state of human rights in China under an international spotlight, but ultimately the prize will best serve its purpose if left unclaimed.  Xiangfeng Yang, The Bigger Prize, South China Morning Post, Oct. 28, 2010.

77 million. That’s a big number. That’s the number of Shoeboxes that Operation Christmas Child (OCC) has distributed to children around the world since 1993. Some people may see that number and think that their one additional shoebox will not make a difference. This week’s Chapel speaker, Neal Johnson, could not disagree more.

Johnson, the Hampton Roads area coordinator for OCC, has been packing boxes with his family for over 16 years. Each box is designated to a boy or girl of a certain age and filled with everything from stuffed animals to toothbrushes, and coloring books to clothes. While he gained much joy from the experience, the boxes would always go to some nameless, faceless child on the other side of the world. Then, two years ago, he took a trip to Lima, Peru, to help distribute the boxes in person. This changed everything. After praying that God would show him which child was to receive his box he met a young boy named Harold. “That’s Harold,” said Johnson, pointing to a picture of the boy displayed on the screen, “that’s the face of my ministry.”

Johnson has learned that even though Jesus was always surrounded by a crowd of people, He never failed to focus on the one person in need. So now, instead of seeing a countless mass of needy children, he sees the individual child who needs Jesus’s love.

“Every year when I give a box or boxes, it is for all the Harold’s of the world.”

The Moot Court Board, who sponsored the service, will be collecting Shoeboxes from Nov. 1st-15th. For information on how you can be a part of this life changing opportunity contact the Moot Court Board or visit the Operation Christmas Child website.