The crime of healthcare fraud is classed as ‘white collar’. It happens when a consumer or healthcare practitioner intentionally submits misleading or false information to allow a person to fraudulently receive healthcare benefits. There are a number of different types of charges that come under healthcare fraud, including:
- A bill for an unperformed health service
- A fake diagnosis offered by a healthcare professional in order to bill for unnecessary procedures and tests
- An inaccurate representation of procedures to receive payments that shouldn’t be covered. An example would be cosmetic surgery
- The practice of upcoding, which means that a healthcare service provider codes the procedure as a more costly one
- The practice of unbundling, which means that each stage of the procedure is billed rather than the whole, thereby driving the cost up
- Kickbacks for patient referrals
- Waiving deductibles and copays
- Billing a patient for an amount that is higher than the copay requirement
These are examples of healthcare fraud committed by a practitioner. Consumers can also commit healthcare fraud, however, for instance by:
- Filing claims for non-received medication or services
- Changing a receipt or bill
- Using someone else’s health coverage
Laws and Penalties
Healthcare fraud is governed in Ohio under ORC 2913.40 – Medicaid Fraud, which classes the crime as a 1st degree misdemeanor. This incurs penalties of a jail sentence of no more than 180 days, and/or a penalty of no more than $1,000. However, this only relates to Medicaid fraud. Other forms of healthcare fraud are covered under federal law, 18 USC 1347. As a federal law, it also incurs much heavier penalties.
Anyone found to attempt to defraud any kind of healthcare benefit program can receive a prison sentence of up to 10 years for each individual count. If this violation also leads to someone sustaining bodily injury, which can happen when the fraudster in question is a healthcare professional who performs an unnecessary procedure, then the penalty is more severe and can lead to a prison sentence of up to 20 years. If the crime caused the death of a patient, the practitioner can be sentenced to life in prison.
Healthcare Fraud Defenses
There are a number of common defenses for healthcare fraud. Most attorneys will attempt to claim there is insufficient evidence. The prosecutor and insurer are charged with the burden of proof, so they must show that fraud has been committed. If it is established that they have met this burden, however, proving insufficient evidence is almost impossible. If a judge deems that the presented evidence is sufficient to convict beyond reasonable doubt, the insufficient evidence approach will not be successful.
A second common defense is absence of intent. For fraud to be committed, it must be proven that the defendant intended to deceive. This has to be proven, with the burden of proof lying with the prosecution. Those who accidentally use a medical insurance card that does not belong to them will not have committed fraud. If, however, someone purposefully takes someone’s card and uses it, then it is classed as fraud. Interestingly, if it can be shown that there was no intent to commit fraud, the reason why the case will be thrown out of court will be listed as ‘insufficient evidence’. This is why this line of defense is becoming increasingly popular.
Another common defense is claiming that the statement was not fraudulent. A statement can be false without being fraudulent. In fact, a misleading statement has to be linked to an existing fact in order for it to be considered fraud. If it relates to a promise of future services, it is not classed as fraud. Expressions of opinion can also not be charged as fraudulent.
Lastly, the defense may try to demonstrate entrapment. This happens when the accused are compelled to commit a crime they otherwise wouldn’t have committed. This has to go above simply being provided with an opportunity, however. This is one of the harder things to prove, as the prosecution will try to say that the intent was already there, and that the defendant was not forced to engage in fraudulent acts.
Statute of Limitations
Because healthcare fraud is almost always charged under the federal law 18 USC 3282, the statute of limitations of this type of crime is five years from the date of the offense.