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