Bill Text: GA SB19 | 2011-2012 | Regular Session | Engrossed

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Bill Title: Forgery/Fraudulent Practices; definitions; medical identity fraud; provide punishment

Spectrum: Partisan Bill (Republican 2-0)

Status: (Vetoed) 2011-05-13 - Veto V1 [SB19 Detail]

Download: Georgia-2011-SB19-Engrossed.html

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11 LC 29 4585S (SCS)

Senate Bill 19

By: Senators Hill of the 32nd and Butterworth of the 50th

AS PASSED SENATE

A BILL TO BE ENTITLED
AN ACT

To amend Chapter 9 of Title 16 of the Official Code of Georgia Annotated, relating to forgery and fraudulent practices, so as to add medical identity fraud to the provisions relating to identity fraud; to provide for definitions; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Chapter 9 of Title 16 of the Official Code of Georgia Annotated, relating to forgery and fraudulent practices, is amended by revising Article 8, relating to identity fraud, as follows:

"ARTICLE 8

16-9-120.

As used in this article, the term:

(1) 'Administrator' means the administrator appointed under Part 2 of Article 15 of Chapter 1 of Title 10, the 'Fair Business Practices Act of 1975.'

(2) 'Business victim' means any individual or entity that provided money, credit, goods, services, or anything of value to someone other than the intended recipient where the intended recipient has not given permission for the actual recipient to receive it and the individual or entity that provided money, credit, goods, services, or anything of value has suffered financial loss as a direct result of the commission or attempted commission of a violation of this article.

(3) 'Consumer victim' means any individual whose personal identifying information has been obtained, compromised, used, or recorded in any manner without the permission of that individual.

(4) 'Health care records' means records however maintained and in whatever form regarding an individual's health, including, but not limited to, doctor's and nurse's examinations and other notes, examination notes of other medical professionals, hospital records, rehabilitation facility records, nursing home records, assisted living facility records, results of medical tests, X-rays, CT scans, MRI scans, vision examinations, pharmacy records, prescriptions, hospital charts, surgical records, mental health treatments and counseling, dental records, and physical therapy notes and evaluations.

(4)(5) 'Identifying information' shall include, but not be limited to:

(A) Current or former names;

(B) Social security numbers;

(C) Driver's license numbers;

(D) Checking account numbers;

(E) Savings account numbers;

(F) Credit and other financial transaction card numbers;

(G) Debit card numbers;

(H) Personal identification numbers;

(I) Electronic identification numbers;

(J) Digital or electronic signatures;

(K) Medical identification numbers;

(L) Birth dates;

(M) Mother's maiden name;

(N) Selected personal identification numbers;

(O) Tax identification numbers;

(P) State identification card numbers issued by state departments; or

(Q) Veteran and military medical identification numbers; and

(Q)(R) Any other numbers or information which can be used to access a person's or entity's resources or health care records.

(6) 'Medical identity theft victim' means any individual whose personal identifying information has been obtained, compromised, used, or recorded in any manner without the permission of that individual.

(5)(7) 'Resources' includes, but is not limited to:

(A) A person's or entity's credit, credit history, credit profile, and credit rating;

(B) United States currency, securities, real property, and personal property of any kind;

(C) Credit, charge, and debit accounts;

(D) Loans and lines of credit;

(E) Documents of title and other forms of commercial paper recognized under Title 11;

(F) Any account, including a safety deposit box, with a financial institution as defined by Code Section 7-1-4, including a national bank, federal savings and loan association, or federal credit union or a securities dealer licensed by the Secretary of State or the federal Securities and Exchange Commission; and

(G) A person's personal history, including, but not limited to, records of such person's driving records; criminal, medical, or insurance history; education; or employment; and

(H) A person's health insurance, health savings accounts, health spending accounts, flexible spending accounts, medicare accounts, Medicaid accounts, dental insurance, vision insurance, and other forms of health insurance and health benefit plans.

16-9-121.

(a) A person commits the offense of identity fraud when he or she willfully and fraudulently:

(1) Without authorization or consent, uses or possesses with intent to fraudulently use identifying information concerning a person;

(2) Uses identifying information of an individual under 18 years old over whom he or she exercises custodial authority;

(3) Uses or possesses with intent to fraudulently use identifying information concerning a deceased individual;

(4) Creates, uses, or possesses with intent to fraudulently use any counterfeit or fictitious identifying information concerning a fictitious person with intent to use such counterfeit or fictitious identification information for the purpose of committing or facilitating the commission of a crime or fraud on another person; or

(5) Without authorization or consent, creates, uses, or possesses with intent to fraudulently use any counterfeit or fictitious identifying information concerning a real person with intent to use such counterfeit or fictitious identification information for the purpose of committing or facilitating the commission of a crime or fraud on another person.

(b) A person commits the offense of medical identity fraud when he or she willfully and fraudulently for the purpose of obtaining medical care, prescription drugs, or other health care services or money or other financial gain:

(1) Without authorization or consent, uses or possesses with intent to fraudulently use identifying information concerning a person;

(2) Uses identifying information of an individual under 18 years old over whom he or she exercises custodial authority;

(3) Uses or possesses with intent to fraudulently use identifying information concerning a deceased individual;

(4) Creates, uses, or possesses with intent to fraudulently use any counterfeit or fictitious identifying information concerning a fictitious person with intent to use such counterfeit or fictitious identification information for the purpose of committing or facilitating the commission of a crime or fraud on another person; or

(5) Without authorization or consent, creates, uses, or possesses with intent to fraudulently use any counterfeit or fictitious identifying information concerning a real individual with intent to use such counterfeit or fictitious identification information for the purpose of committing or facilitating the commission of a crime or fraud on another person.

(b)(c) A person commits the offense of identity fraud or medical identity fraud by receipt of fraudulent identification information when he or she willingly accepts for identification purposes identifying information which he or she knows to be fraudulent, stolen, counterfeit, or fictitious. In any prosecution under this subsection, it shall not be necessary to show a conviction of the principal thief, counterfeiter, or fraudulent user.

(c)(d) The offenses created by this Code section shall not merge with any other offense.

(d)(e) This Code section shall not apply to a person under the age of 21 who uses a fraudulent, counterfeit, or other false identification card for the purpose of obtaining entry into a business establishment or for purchasing items which he or she is not of legal age to purchase.

16-9-122.

It shall be unlawful for any person to attempt or conspire to commit any offense prohibited by this article. Any person convicted of a violation of this Code section shall be punished by imprisonment or community service, by a fine, or by both such punishments not to exceed the maximum punishment prescribed for the offense the commission of which was the object of the attempt or conspiracy.

16-9-123.

(a) The administrator appointed under Code Section 10-1-395 shall have the authority to investigate any complaints of consumer victims regarding identity fraud. In conducting such investigations, the administrator shall have all investigative powers which are available to the administrator under Part 2 of Article 15 of Chapter 1 of Title 10, the 'Fair Business Practices Act of 1975.' If, after such investigation, the administrator determines that a person has been a consumer victim of identity fraud in this state, the administrator shall, at the request of the consumer victim, provide the consumer victim with certification of the findings of such investigation. Copies of any and all complaints received by any law enforcement agency of this state regarding potential violations of this article shall be transmitted to the Georgia Bureau of Investigation. The Georgia Bureau of Investigation shall maintain a repository for all complaints in the State of Georgia regarding identity fraud. Information contained in such repository shall not be subject to public disclosure. The information in the repository may be transmitted to any other appropriate investigatory agency or entity. Consumer victims of identity fraud may file complaints directly with the Governor's Office of Consumer Affairs, the Georgia Bureau of Investigation, or with local law enforcement. Employees of the Governor's Office of Consumer Affairs may communicate with consumer victims. Any and all transmissions authorized under this Code section may be transmitted electronically, provided that such transmissions are made through a secure channel for the transmission of such electronic communications or information, the sufficiency of which is acceptable to the Governor's Office of Consumer Affairs. Nothing in this Code section shall be construed to preclude any otherwise authorized law enforcement or prosecutorial agencies from conducting investigations and prosecuting offenses of identity fraud.

(b) The provisions of this Code section shall not apply to medical identity theft victims.

16-9-124.

The Attorney General and prosecuting attorneys shall have the authority to conduct the criminal prosecution of all cases of identity fraud or medical identity fraud.

16-9-125.

The General Assembly finds that identity fraud or medical identity fraud involves the use of identifying information which is uniquely personal to the consumer victim, medical identity theft victim, or business victim of that identity fraud or medical identity fraud and which information is considered to be in the lawful possession of the consumer victim, medical identity theft victim, or business victim wherever the consumer victim, medical identity theft victim, or business victim currently resides or is found. Accordingly, the fraudulent use of that such fraudulently used information involves the fraudulent use of information that is, for the purposes of this article, is found within the county where the consumer victim, medical identity theft victim, or business victim of the identity fraud or medical identity fraud resides or is found. Accordingly, in a proceeding under this article, the crime will shall be considered to have been committed in any county where the person whose means of identification or financial information was appropriated resides or is found, or in any county in which any other part of the offense took place, regardless of whether the defendant was ever actually in such county.

16-9-125.1.

(a) A person who has learned or reasonably believes that he or she has been the victim of identity fraud or medical identity fraud may contact the local law enforcement agency with jurisdiction over his or her actual residence for the purpose of making an incident report. The law enforcement agency having jurisdiction over the complainant's residence shall make a report of the complaint and provide the complainant with a copy of the report. Where jurisdiction for the investigation and prosecution of the complaint lies with another agency, the law enforcement agency making the report shall forward a copy to the agency having such jurisdiction and shall advise the complainant that the report has been so forwarded.

(b) Nothing in this Code section shall be construed so as to interfere with the discretion of a law enforcement agency to allocate resources for the investigation of crimes. A report created pursuant to this Code section is shall not be required to be counted as an open case file.

16-9-126.

(a) A violation of this article, other than a violation of Code Section 16-9-122, shall be punishable by imprisonment for not less than one nor more than ten years or a fine not to exceed $100,000.00, or both. Any person who commits such a violation for the second or any subsequent offense shall be punished by imprisonment for not less than three nor more than 15 years, a fine not to exceed $250,000.00, or both.

(b) A violation of this article which does not involve the intent to commit theft or appropriation of any property, resource, or other thing of value that is committed by a person who is less than 21 years of age shall be punishable by imprisonment for not less than one nor more than three years or a fine not to exceed $5,000.00, or both.

(c) Any person found guilty of a violation of this article may be ordered by the court to make restitution to any consumer victim, medical identity theft victim, or any business victim of such fraud.

(d) Each violation of this article shall constitute a separate offense.

(e) Upon a conviction of a violation of this article, the court may issue any order necessary to correct a public record that contains false information resulting from the actions which resulted in the conviction.

16-9-127.

The administrator shall have authority to initiate any proceedings and to exercise any power or authority in the same manner as if he or she were acting under Part 2 of Article 15 of Chapter 1 of Title 10, as regards violations or potential violations of this article pertaining to identity fraud.

16-9-128.

(a) The prohibitions set forth in Code Sections 16-9-121 and 16-9-122 shall not apply to nor shall any cause of action arise under Code Sections 16-9-129 and 16-9-131 for:

(1) The lawful obtaining of credit information in the course of a bona fide consumer or commercial transaction;

(2) The lawful, good faith exercise of a security interest or a right to offset by a creditor or a financial institution;

(3) The lawful, good faith compliance by any party when required by any warrant, levy, garnishment, attachment, court order, or other judicial or administrative order, decree, or directive; or

(4) The good faith use of identifying information with the permission of the affected person.

(b) The exemptions provided in subsection (a) of this Code section will shall not apply to a person intending to further a scheme to violate Code Section 16-9-121 or 16-9-122.

(c) It is shall not be necessary for the state to negate any exemption or exception in this article in any complaint, accusation, indictment, or other pleading or in any trial, hearing, or other proceeding under this article involving a business victim. In such cases, the burden of proof of any exemption or exception is shall be upon the business victim claiming it.

16-9-129.

Any business victim who is injured by reason of any violation of this article shall have a cause of action for the actual damages sustained and, where appropriate, punitive damages. Such business victim may also recover attorney's fees in the trial and appellate courts and the costs of investigation and litigation reasonably incurred.

16-9-130.

(a) Any consumer victim or medical identity theft victim who suffers injury or damages as a result of a violation of this article may bring an action individually or as a representative of a class against the person or persons engaged in such violations under the rules of civil procedure to seek equitable injunctive relief and to recover general and punitive damages sustained as a consequence thereof in any court having jurisdiction over the defendant; provided, however, that punitive damages shall be awarded only in cases of intentional violation. A claim under this article may also be asserted as a defense, setoff, cross-claim, or counterclaim or third-party claim against such person.

(b) A court shall award three times actual damages for an intentional violation.

(c) If the court finds in any action that there has been a violation of this article, the consumer victim or medical identity theft victim injured by such violation shall, in addition to other relief provided for in this Code section and irrespective of the amount in controversy, be awarded reasonable attorney's fees and expenses of litigation incurred in connection with said action.

(d) It shall not be a defense in any action under this article that others were, are, or will be engaged in like practices.

(e) In any action brought under this article, the administrator shall be served by certified or registered mail or statutory overnight delivery with a copy of the initial complaint and any amended complaint within 20 days of the filing of such complaint. The administrator shall be entitled to be heard in any such action, and the court where such action is filed may enter an order requiring any of the parties to serve a copy of any other pleadings in an action upon the administrator.

16-9-131.

Whenever an investigation pertaining to identity fraud has been conducted by the Governor's Office of Consumer Affairs under this article and such investigation reveals conduct which constitutes a criminal offense, the administrator shall forward the results of such investigation to the Attorney General or other prosecuting attorney of this state who shall commence any criminal prosecution that he or she deems appropriate.

16-9-132.

This article is cumulative with other laws and is not exclusive. The rights or remedies provided for in this article shall be in addition to any other procedures, rights, remedies, or duties provided for in any other law or in decisions of the courts of this state dealing with the same subject matter."

SECTION 2.

All laws and parts of laws in conflict with this Act are repealed.