[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1508 Introduced in Senate (IS)]
111th CONGRESS
1st Session
S. 1508
To amend the Improper Payments Information Act of 2002 (31 U.S.C. 3321
note) in order to prevent the loss of billions in taxpayer dollars.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 23, 2009
Mr. Carper (for himself, Mr. Coburn, Mrs. McCaskill, Ms. Collins, and
Mr. McCain) introduced the following bill; which was read twice and
referred to the Committee on Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To amend the Improper Payments Information Act of 2002 (31 U.S.C. 3321
note) in order to prevent the loss of billions in taxpayer dollars.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Improper Payments Elimination and
Recovery Act of 2009''.
SEC. 2. IMPROPER PAYMENTS ELIMINATION AND RECOVERY.
(a) Susceptible Programs and Activities.--Section 2 of the Improper
Payments Information Act of 2002 (31 U.S.C. 3321 note) is amended by
striking subsection (a) and inserting the following:
``(a) Identification of Susceptible Programs and Activities.--
``(1) In general.--The head of each agency shall, in
accordance with guidance prescribed by the Director of the
Office of Management and Budget, periodically review all
programs and activities that the relevant agency head
administers and identify all programs and activities that may
be susceptible to significant improper payments.
``(2) Frequency.--Reviews under paragraph (1) shall be
performed for each program and activity that the relevant
agency head administers during the year after which the
Improper Payments Elimination and Recovery Act of 2009 is
enacted and at least once every 3 fiscal years thereafter.
``(3) Risk assessments.--
``(A) Definition.--In this subsection the term
`significant' means--
``(i) except as provided under clause (ii),
that improper payments in the program or
activity in the preceding fiscal year may have
exceeded--
``(I) $10,000,000 of all program or
activity payments made during that
fiscal year reported and 2.5 percent of
program outlays; or
``(II) $100,000,000; and
``(ii) with respect to fiscal years
following September 30th of a fiscal year
beginning before fiscal year 2013 as determined
by the Office of Management and Budget, that
improper payments in the program or activity in
the preceding fiscal year may have exceeded--
``(I) $10,000,000 of all program or
activity payments made during that
fiscal year reported and 1.5 percent of
program outlays; or
``(II) $100,000,000.
``(B) Scope.--In conducting the reviews under
paragraph (1), the head of each agency shall take into
account those risk factors that are likely to
contribute to a susceptibility to significant improper
payments, such as--
``(i) whether the program or activity
reviewed is new to the agency;
``(ii) the complexity of the program or
activity reviewed;
``(iii) the volume of payments made through
the program or activity reviewed;
``(iv) whether payments or payment
eligibility decisions are made outside of the
agency, such as by a State or local government;
``(v) recent major changes in program
funding, authorities, practices, or procedures;
``(vi) the level and quality of training
for personnel responsible for making program
eligibility determinations or certifying that
payments are accurate; and
``(vii) significant deficiencies in the
audit report of the agency or other relevant
management findings that might hinder accurate
payment certification.''.
(b) Estimation of Improper Payments.--Section 2 of the Improper
Payments Information Act of 2002 (31 U.S.C. 3321 note) is amended by
striking subsection (b) and inserting the following:
``(b) Estimation of Improper Payments.--With respect to each
program and activity identified under subsection (a), the head of the
relevant agency shall--
``(1) produce a statistically valid or otherwise
appropriate estimate of the improper payments made by each
program and activity; and
``(2) include those estimates in the accompanying materials
to the annual financial statement of the agency required under
section 3515 of title 31, United States Code, or similar
provision of law and applicable guidance of the Office of
Management and Budget.''.
(c) Reports on Actions To Reduce Improper Payments.--Section 2 of
the Improper Payments Information Act of 2002 (31 U.S.C. 3321 note) is
amended by striking subsection (c) and inserting the following:
``(c) Reports on Actions To Reduce Improper Payments.--With respect
to any program or activity of an agency with estimated improper
payments under subsection (b), the head of the agency shall provide
with the estimate under subsection (b) a report on what actions the
agency is taking to reduce improper payments, including--
``(1) a description of the causes of the improper payments,
actions planned or taken to correct those causes, and the
planned or actual completion date of the actions taken to
address those causes;
``(2) in order to reduce improper payments to a level below
which further expenditures to reduce improper payments would
cost more than the amount such expenditures would save in
prevented or recovered improper payments, a statement of
whether the agency has what is needed with respect to--
``(A) internal controls;
``(B) human capital; and
``(C) information systems and other infrastructure;
``(3) if the agency does not have sufficient resources to
establish and maintain effective internal controls under
paragraph (2)(A), a description of the resources the agency has
requested in its budget submission to establish and maintain
such internal controls;
``(4) program-specific and activity-specific improper
payments reduction targets that have been approved by the
Director of the Office of Management and Budget; and
``(5) a description of the steps the agency has taken to
ensure that agency managers, programs, and, where appropriate,
States and localities are held accountable through annual
performance appraisal criteria for--
``(A) meeting applicable improper payments
reduction targets; and
``(B) establishing and maintaining sufficient
internal controls, including an appropriate control
environment, that effectively--
``(i) prevent improper payments from being
made; and
``(ii) promptly detect and recover improper
payments that are made.''.
(d) Reports on Actions To Recover Improper Payments.--Section 2 of
the Improper Payments Information Act of 2002 (31 U.S.C. 3321 note) is
amended--
(1) by striking subsection (e);
(2) by redesignating subsections (d) and (f) as subsections
(f) and (g), respectively; and
(3) by inserting after subsection (c) the following:
``(d) Reports on Actions To Recover Improper Payments.--With
respect to any improper payments identified in recovery audits
conducted under section 2(h) of the Improper Payments Elimination and
Recovery Act of 2009 (31 U.S.C. 3321 note), the head of the agency
shall provide with the estimate under subsection (b) a report on all
actions the agency is taking to recover improper payments, including--
``(1) a discussion of the methods used by the agency to
recover overpayments;
``(2) the amounts recovered, outstanding, and determined to
not be collectable, including the percent such amounts
represent of the total overpayments of the agency;
``(3) if a determination has been made that certain
overpayments are not collectable, a justification for that
determination;
``(4) an aging schedule of the amounts outstanding;
``(5) a summary of how recovered amounts have been disposed
of;
``(6) a discussion of any conditions giving rise to
improper payments and how those conditions are being resolved;
and
``(7) if the agency has determined under section 2(h) of
the Improper Payments Elimination and Recovery Act of 2009 (31
U.S.C. 3321 note) that performing recovery audits for any
applicable program or activity is not cost effective, a
justification for that determination.
``(e) Governmentwide Reporting of Improper Payments and Actions To
Recover Improper Payments.--
``(1) Report.--Each fiscal year the Director of the Office
of Management and Budget shall submit a report with respect to
the preceding fiscal year on actions agencies have taken to
report information regarding improper payments and actions to
recover improper payments to--
``(A) the Committee on Homeland Security and
Governmental Affairs of the Senate;
``(B) the Committee on Oversight and Government
Reform of the House of Representatives; and
``(C) the Comptroller General.
``(2) Contents.--Each report under this subsection shall
include--
``(A) a summary of the reports of each agency on
improper payments and recovery actions submitted under
this section;
``(B) an identification of the compliance status of
each agency to which this Act applies;
``(C) governmentwide improper payment reduction
targets; and
``(D) a discussion of progress made towards meeting
governmentwide improper payment reduction targets.''.
(e) Definitions.--Section 2 of the Improper Payment Information Act
of 2002 (31 U.S.C. 3321 note) is amended by striking subsections (f)
(as redesignated by this section) and inserting the following:
``(f) Definitions.--In this section:
``(1) Agency.--The term `agency' means an executive agency,
as that term is defined in section 102 of title 31, United
States Code.
``(2) Improper payment.--The term `improper payment'--
``(A) means any payment that should not have been
made or that was made in an incorrect amount (including
overpayments and underpayments) under statutory,
contractual, administrative, or other legally
applicable requirements; and
``(B) includes any payment to an ineligible
recipient, any payment for an ineligible good or
service, any duplicate payment, any payment for a good
or service not received (except for such payments where
authorized by law), and any payment that does not
account for credit for applicable discounts.
``(3) Payment.--The term `payment' means any transfer or
commitment for future transfer of Federal funds such as cash,
securities, loans, loan guarantees, and insurance subsidies to
any non-Federal person or entity, that is made by a Federal
agency, a Federal contractor, a Federal grantee, or a
governmental or other organization administering a Federal
program or activity.
``(4) Payment for an ineligible good or service.--The term
`payment for an ineligible good or service' shall include a
payment for any good or service that is rejected under any
provision of any contract, grant, lease, cooperative agreement,
or any other procurement mechanism.''.
(f) Guidance by the Office of Management and Budget.--Section 2 of
the Improper Payments Information Act of 2002 (31 U.S.C. 3321 note) is
amended by striking subsection (g) (as redesignated by this section)
and inserting the following:
``(g) Guidance by the Office of Management and Budget.--
``(1) In general.--Not later than 6 months after the date
of enactment of the Improper Payments Elimination and Recovery
Act of 2009, the Director of the Office of Management and
Budget shall prescribe guidance for agencies to implement the
requirements of this section. The guidance shall not include
any exemptions to such requirements not specifically authorized
by this section.
``(2) Contents.--The guidance under paragraph (1) shall
prescribe--
``(A) the form of the reports on actions to reduce
improper payments, recovery actions, and governmentwide
reporting; and
``(B) strategies for addressing risks and
establishing appropriate prepayment and postpayment
internal controls.''.
(g) Determination of Agency Readiness for Opinion on Internal
Control.--Not later than 1 year after the date of enactment of this
Act, the Director of the Office of Management and Budget shall
develop--
(1) specific criteria as to when an agency should initially
be required to obtain an opinion on internal control over
financial reporting; and
(2) criteria for an agency that has demonstrated a
stabilized, effective system of internal control over financial
reporting, whereby the agency would qualify for a multiyear
cycle for obtaining an audit opinion on internal control over
financial reporting, rather than an annual cycle.
(h) Recovery Audits.--
(1) Definition.--In this subsection, the term ``agency''
has the meaning given under section 2(f) of the Improper
Payments Information Act of 2002 (31 U.S.C. 3321 note) as
redesignated by this Act.
(2) In general.--
(A) Conduct of audits.--Except as provided under
paragraph (4) and if not prohibited under any other
provision of law, the head of each agency shall conduct
recovery audits with respect to each program and
activity of the agency that expends $1,000,000 or more
annually if conducting such audits would be cost-
effective.
(B) Procedures.--In conducting recovery audits
under this subsection, the head of an agency--
(i) shall give priority to the most recent
payments and to payments made in any program or
programs identified as susceptible to
significant improper payments under section
2(a) of the Improper Payments Information Act
of 2002 (31 U.S.C. 3321 note);
(ii) shall implement this subsection in a
manner designed to ensure the greatest
financial benefit to the Government; and
(iii) may conduct recovery audits directly,
by procuring performance of recovery audits by
contract (subject to the availability of
appropriations), or by any combination thereof.
(C) Recovery audit contracts.--With respect to
recovery audits procured by an agency by contract--
(i) subject to subparagraph (B)(iii), the
head of the agency may authorize the contractor
to notify entities (including persons) of
potential overpayments made to such entities,
respond to questions concerning potential
overpayments, and take other administrative
actions with respect to overpayment claims made
or to be made by the agency; and
(ii) such contractor shall have no
authority to make final determinations relating
to whether any overpayment occurred and whether
to compromise, settle, or terminate overpayment
claims.
(D) Contract terms and conditions.--The agency
shall include in each contract for procurement of
performance of a recovery audit a requirement that the
contractor shall--
(i) provide to the agency periodic reports
on conditions giving rise to overpayments
identified by the contractor and any
recommendations on how to mitigate such
conditions; and
(ii) notify the agency of any overpayments
identified by the contractor pertaining to the
agency or to any other agency or agencies that
are beyond the scope of the contract.
(E) Agency action following notification.--An
agency shall take prompt and appropriate action in
response to a report or notification by a contractor
under subparagraph (D)(ii), to collect overpayments and
shall forward to other agencies any information that
applies to such agencies.
(3) Disposition of amounts recovered.--
(A) In general.--Amounts collected by agencies each
fiscal year through recovery audits conducted under
this subsection shall be treated in accordance with
this paragraph.
(B) Use for financial management improvement
program.--Not more than 25 percent of the amounts
collected by an agency through recovery audits--
(i) shall be available, subject to
appropriation, to the head of the agency or the
State or local government administering the
program or activity to carry out the financial
management improvement program of the agency
under paragraph (4);
(ii) may be credited, if applicable, for
that purpose by the head of an agency to any
agency appropriations and funds that are
available for obligation at the time of
collection; and
(iii) shall be used to supplement and not
supplant any other amounts available for that
purpose and shall remain available until
expended.
(C) Use for original purpose.--Not more than 25
percent of the amounts collected by an agency--
(i) shall be credited to the appropriation
or fund, if any, available for obligation at
the time of collection for the same general
purposes as the appropriation or fund from
which the overpayment was made; and
(ii) shall remain available for the same
period and purposes as the appropriation or
fund to which credited.
(D) Use for inspector general activities.--Not more
than 5 percent of the amounts collected by an agency
shall be available, subject to appropriation, to the
Inspector General of that agency for--
(i) the Inspector General to carry out this
Act; or
(ii) any other activities of the Inspector
General relating to investigating improper
payments or auditing internal controls
associated with payments.
(E) Deposit of proceeds.--Funds made available
under subparagraphs (B) and (D) by appropriations shall
be--
(i) deposited into the appropriate program
integrity accounts of the agency or the State
or local government administering the program
or activity; and
(ii) expended only as authorized in annual
appropriations Acts.
(F) Remainder.--Amounts collected that are not
applied in accordance with subparagraphs (B), (C), or
(D) or to meet obligations to recovery audit
contractors shall be deposited in the Treasury as
miscellaneous receipts.
(G) Exceptions relating to entitlement and tax
credit programs.--This paragraph shall not apply to
amounts collected through recovery audits conducted
under this subsection relating to--
(i) entitlement programs under section 3(9)
of the Congressional Budget and Impoundment
Control Act of 1974 (2 U.S.C. 622(9)); or
(ii) tax credit programs under the Internal
Revenue Code of 1986.
(4) Financial management improvement program.--
(A) Requirement.--The head of each agency shall
conduct a financial management improvement program,
consistent with rules prescribed by the Director of the
Office of Management and Budget.
(B) Program features.--In conducting the program,
the head of the agency--
(i) shall, as the first priority of the
program, address problems that contribute
directly to agency improper payments; and
(ii) may seek to reduce errors and waste in
other agency programs and operations.
(5) Other recovery audit requirements.--
(A) In general.--Subchapter VI of chapter 35 of
title 31, United States Code, is repealed.
(B) Technical and conforming amendments.--
(i) Table of sections.--The table of
sections for chapter 35 of title 31, United
States Code, is amended by striking the matter
relating to subchapter VI.
(ii) Definition.--Section 3501 of title 31,
United States Code, is amended by striking
``and subchapter VI of this title''.
(iii) Homeland security grants.--Section
2022(a)(6) of the Homeland Security Act of 2002
(6 U.S.C. 612(a)(6)) is amended by striking
``(as that term is defined by the Director of
the Office of Management and Budget under
section 3561 of title 31, United States Code)''
and inserting ``under section 2(h) of the
Improper Payments Elimination and Recovery Act
of 2009 (31 U.S.C. 3321 note)''.
(6) Rule of construction.--Except as provided under
paragraph (5), nothing in this section shall be construed as
terminating or in any way limiting authorities that are
otherwise available to agencies under existing provisions of
law to recover improper payments and use recovered amounts.
(i) Report on Recovery Auditing.--Not later than 2 years after the
date of the enactment of this Act, the Chief Financial Officers Council
established under section 302 of the Chief Financial Officers Act of
1990 (31 U.S.C. 901 note), in consultation with the Council of
Inspectors General on Integrity and Efficiency established under
section 7 of the Inspector General Reform Act of 2009 (Public Law 110-
409) and recovery audit experts, shall conduct a study of--
(1) the implementation of subsection (h);
(2) the costs and benefits of agency recovery audit
activities, including those under subsection (h), and including
the effectiveness of using the services of--
(A) private contractors;
(B) agency employees;
(C) cross-servicing from other agencies; or
(D) any combination of the provision of services
described under subparagraphs (A) through (C); and
(3) submit a report on the results of the study to--
(A) the Committee on Homeland Security and
Governmental Affairs of the Senate;
(B) the Committee on Oversight and Government
Reform of the House of Representatives; and
(C) the Comptroller General.
SEC. 3. COMPLIANCE.
(a) Definitions.--In this section:
(1) Agency.--The term ``agency'' has the meaning given
under section 2(f) of the Improper Payments Information Act of
2002 (31 U.S.C. 3321 note) as redesignated by this Act.
(2) Annual financial statement.--The term ``annual
financial statement'' means the annual financial statement
required under section 3515 of title 31, United States Code, or
similar provision of law.
(3) Compliance.--The term ``compliance'' means that the
agency--
(A) has published an annual financial statement for
the most recent fiscal year and posted that report and
any accompanying materials required under guidance of
the Office of Management and Budget on the agency
website;
(B) if required, has conducted a program specific
risk assessment for each program or activity that
conforms with section 2(a) the Improper Payments
Information Act of 2002 (31 U.S.C. 3321 note);
(C) if required, publishes improper payments
estimates for all programs and activities identified
under section 2(b) of the Improper Payments Information
Act of 2002 (31 U.S.C. 3321 note) in the accompanying
materials to the annual financial statement;
(D) publishes programmatic corrective action plans
prepared under section 2(c) of the Improper Payments
Information Act of 2002 (31 U.S.C. 3321 note) that the
agency may have in the accompanying materials to the
annual financial statement;
(E) publishes improper payments reduction targets
established under section 2(c) of the Improper Payments
Information Act of 2002 (31 U.S.C. 3321 note) that the
agency may have in the accompanying materials to the
annual financial statement for each program assessed to
be at risk, and is meeting such targets; and
(F) has reported an improper payment rate of less
than 10 percent for each program and activity for which
an estimate was published under section 2(b) of the
Improper Payments Information Act of 2002 (31 U.S.C.
3321 note).
(b) Annual Compliance Report by Inspectors General of Agencies.--
Each fiscal year, the Inspector General of each agency shall determine
whether the agency is in compliance and submit a report on that
determination to--
(1) the head of the agency;
(2) the Committee on Homeland Security and Governmental
Affairs of the Senate;
(3) the Committee on Oversight and Governmental Reform of
the House of Representatives; and
(4) the Comptroller General.
(c) Remediation.--
(1) Noncompliance.--
(A) In general.--If an agency is determined by the
Inspector General of that agency not to be in
compliance under subsection (b) in a fiscal year, the
head of the agency shall submit a plan to Congress
describing the actions that the agency will take to
come into compliance.
(B) Plan.--The plan described under subparagraph
(A) shall include--
(i) measurable milestones to be
accomplished in order to achieve compliance for
each program or activity;
(ii) the designation of a senior agency
official who shall be accountable for the
progress of the agency in coming into
compliance for each program or activity; and
(iii) the establishment of an
accountability mechanism, such as a performance
agreement, with appropriate incentives and
consequences tied to the success of the
official designated under clause (ii) in
leading the efforts of the agency to come into
compliance for each program and activity.
(2) Noncompliance for 2 fiscal years.--
(A) In general.--If an agency is determined by the
Inspector General of that agency not to be in
compliance under subsection (b) for 2 consecutive
fiscal years for the same program or activity, and the
Director of the Office of Management and Budget
determines that additional funding would help the
agency come into compliance, the head of the agency
shall obligate additional funding, in an amount
determined by the Director, to intensified compliance
efforts.
(B) Funding.--In providing additional funding
described under subparagraph (A), the head of an agency
shall use any reprogramming or transfer authority
available to the agency. If after exercising that
reprogramming or transfer authority additional funding
is necessary to obligate the full level of funding
determined by the Director of the Office of Management
and Budget under subparagraph (A), the agency shall
submit a request to Congress for additional
reprogramming or transfer authority.
(3) Reauthorization proposals.--If an agency is determined
by the Inspector General of that agency not to be in compliance
under subsection (b) for more than 3 consecutive fiscal years
for the same program or activity, the head of the agency shall,
not later than 30 days after such determination, submit to
Congress--
(A) reauthorization proposals for each program or
activity that has not been in compliance for 3 or more
consecutive fiscal years; or
(B) proposed statutory changes necessary to bring
the program or activity into compliance.
(d) Compliance Enforcement Pilot Programs.--
(1) In general.--The Director of the Office of Management
and Budget may establish 1 or more pilot programs which shall
test potential accountability mechanisms with appropriate
incentives and consequences tied to success in ensuring
compliance with this Act and eliminating improper payments.
(2) Report.--Not later than 5 years after the date of
enactment of this Act, the Director of the Office of Management
and Budget shall submit a report to Congress on the findings
associated with any pilot programs conducted under paragraph
(1). The report shall include any legislative or other
recommendations that the Director determines necessary.
(e) Report on Chief Financial Officers Act of 1990.--Not later than
1 year after the date of the enactment of this Act, the Chief Financial
Officers Council established under section 302 of the Chief Financial
Officers Act of 1990 (31 U.S.C. 901 note) and the Council of Inspectors
General on Integrity and Efficiency established under section 7 of the
Inspector General Reform Act of 2009 (Public Law 110-409), in
consultation with a broad cross-section of experts and stakeholders in
Government accounting and financial management shall--
(1) jointly examine the lessons learned during the first 20
years of implementing the Chief Financial Officers Act of 1990
(31 U.S.C. 901) and identify any reforms or improvements to the
legislative and regulatory compliance framework for Federal
financial management that will optimize Federal agency efforts
to--
(A) publish relevant, timely, and reliable reports
on Government finances; and
(B) implement internal controls that mitigate the
risk for fraud, waste, and error in Government
programs; and
(2) submit a report on the results of the examination to--
(A) the Committee on Homeland Security and
Governmental Affairs of the Senate;
(B) the Committee on Oversight and Government
Reform of the House of Representatives; and
(C) the Comptroller General.
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