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Getting A Health Care Fraud Indictment Dismissed

By Ronald W. Chapman, II

Most health care fraud charges start with the issuance of an indictment by a grand jury. The indictment is a document that sets forth the charges and is intended to put the defendant on notice of the charges and the conduct at issue. Health care fraud is one of the most difficult offenses to plead in an indictment and Prosecutors who are not familiar with charging health care fraud routinely fail to properly draft the indictment. Unfortunately, attorneys who are not skilled and experienced at defending health care fraud cases, easily overlook these mistakes – to the detriment of their client. This is precisely why physicians and other health professionals, or health care companies, must choose an experienced health care defense firm to defend their case.
Generally, Rule 7(c)(1) of the Federal Rules of Criminal Procedure requires a health care fraud indictment provide a “plain, concise and definite written statement of the essential facts constituting the offense charged”. Fraud offenses, such as health care fraud, should contain a detailed description of the health care fraud scheme to ensure the defendant has sufficient notice of the offense. United States v. Yefsky, 994 F.2d 885, 893 (1st Cir. 1993). This usually means that the indictment must set forth all the elements of health care fraud.

To establish health care fraud under 18 U.S.C. §1347, the Government must prove beyond a reasonable doubt that the defendant (1) devised a scheme or artifice to defraud a health care benefit program in connection with the delivery of or payment for health care benefits, items, or services; (2) executed or attempted to execute this scheme or artifice to defraud; (3) acted knowingly and willfully with the intent to defraud; and (4) the scheme to defraud employed false pretenses, representations, or promises. United States v. Rufai, 732 F.3d 1175 (10th Cir. 2013).
More specifically, an indictment in a health care fraud case must set forth what the scheme was designed to deprive the victim of (money, items or services) and then describe the means the scheme was designed to be accomplished. Belt v. United States, 868 F.2d 1208, 1211 (11th Cir. 1989); see also, United States v. Bobo, 344 F.3d 1076 (11th Cir. 2003) .
An indictment must also allege that the fraud related to a material element of the conditions of participation for the health benefit program (Medicare, Medicaid, private insurance). United States v. Perry, 757 F.3d 166, 175-76 (4th Cir. 2014). For instance, if a provider billed a 99215 but did not spend any face-to-face time with the patient, the Government must allege that failure to see the patient was a material element.

There are many other factors that may make a health care fraud indictment insufficient. For instance, payment of a kickback alone is not enough to establish health care fraud. United States v. Medina, 485 F.3d 1291 (11th Cir. 2007). An attorney must also review the statute of limitations to see if the indictment is time barred by the five-year statute of limitations set forth in 18 U.S.C. § 3282(a). Although, the statute of limitations generally begins to run when the crime is complete. Toussie v. United States, 397 U.S. 112, 115 (1970). In addition, health care fraud will generally be considered a continuing offense, meaning that it is considered complete when all the fraudulent actions alleged are finished. United States v. Smith, F.3d 561, 563-64 (4th Cir. 2004).

An exhaustive list of every conceivable avenue for dismissal of a health care fraud indictment is outside the scope of this article, it is imperative that those facing health care fraud charges contact an experienced health care fraud defense firm for a consultation. Chapman Law Group is a multi-state health care defense firm. We have handled health care fraud cases across the country and are ready to review your case today. Our attorneys include former health care fraud prosecutors and health care law experts who can review your health care fraud case and provide you with the best defense.