The United States criminal code contains a wide range of punishable offenses for taking money that does not belong to you. For those engaged in activities relating to the delivery and payment for health care services, health care fraud stands out. Health care practitioners commit fraud by misstating the actual amount for service, up-coding by claiming more intensive care than was delivered, and more commonly, billing for care that was never given.
Sometimes the fraud is minor and government prosecutors can become annoyed when the penalty for the minor fraud won’t be good enough. These prosecutors can bring a federal criminal charge for aggravated identify theft carrying a two year minimum prison sentence. After all, the request for reimbursement for healthcare must include a patient name.
David Dubin was charged with aggravated identify theft and healthcare fraud for over-billing Medicaid $388 by falsifying the credentials of the provider performing psychological services since the mental health care provider was a licensed psychological associate not a psychologist. Government prosecutors argued that the fraudulent billing automatically meant Mr. Dubin had committed identity theft because the Medicaid bill included the patient’s Medicaid reimbursement number.
18 U.S. Code § 1347 – Health care fraud
(a) Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program,
in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.
(b) With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section.
18 U.S. Code § 1028A – Aggravated identity theft
(1) In general.—
Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.
… (c) Definition.—For purposes of this section, the term “felony violation enumerated in subsection (c)” means any offense that is a felony violation of—
(1) section 641 (relating to theft of public money, property, or rewards), section 656 (relating to theft, embezzlement, or misapplication by bank officer or employee), or section 664 (relating to theft from employee benefit plans);
…(4) any provision contained in this chapter (relating to fraud and false statements), other than this section or section 1028(a)(7);
(5) any provision contained in chapter 63 (relating to mail, bank, and wire fraud)…
The U.S. Supreme Court said that’s ridiculous. However much prosecutors argue that they would be choosy in bringing identity theft charges, when other crimes have been committed, the Court wasn’t buying the argument, “we cannot construe a criminal statute on the assumption that the Government will use it responsibly.”
The Government’s reading would sweep in the hour-inflating lawyer, the steak-switching waiter, the building contractor who tacks an extra $10 onto the price of the paint he purchased. So long as they used various common billing methods, they would all be subject to a mandatory two years in federal prison. To say that such a result is implausible would be an understatement.
If §1028A(a)(1) applies virtually automatically to a swath of predicate offenses, the prosecutor can hold the threat of charging an additional 2-year mandatory prison sentence over the head of any defendant who is considering going to trial. [599 U.S. _____ (2023) Slip Opinion at 19]
Justice Gorsuch, in a concurring opinion, put the craziness of the government’s view in plainer terms.
Whoever among you is not an “aggravated identity thief,” let him cast the first stone. The United States came to this Court with a view of 18 U. S. C. §1028A(a)(1) that would affix that unfortunate label on almost every adult American. Every bill splitter who has overcharged a friend using mobile-payment service like Venmo. Every contractor who has rounded up his billed time by even a few minutes. Every college hopeful who has overstated his involvement the high school glee club. All of those individuals, the United States says, engage in conduct that can invite a mandatory 2-year stint in federal prison. The Court today rightly rejects that unserious position.
…the Constitution prohibits the Judiciary from resolving reasonable doubts about a criminal statute’s meaning by rounding up to the most punitive interpretation its text and context can tolerate. [Concurrence at 1]
The Justices held that “use of the patient’s name was not at the crux of what made the underlying over-billing fraudulent. The crux of the healthcare fraud was a misrepresentation about the qualifications of petitioner’s employee. The patient’s name was an ancillary feature of the billing method employed.” [at 20]
Thankfully, the U.S. Constitution requires more from government prosecutors than a promise to do the right thing.