Medical Identity Theft
Identity theft is an offense that can include many acts and areas of law or crimes. As such, the area is expanding into different sectors because it is being done for the purpose of attaining financial and/or any other wrongful gain, including services and goods. Medical Identity theft is one of the many types of identity fraud or a way that a person uses an identity fraudulently.
A person accused of medical identity theft can be a patient or a doctor. It can be an offense more serious than financial identity fraud because it opens up various risks for not only victims but also health care providers.
Medical identity can happen in multiple ways from either a patient or a doctor. For example, you might be a patient who is accused of medical identity theft for seeking services from a doctor while providing another person’s personal information. However, you could be a doctor accused of submitting a bill for a non-existent patient.
If you find that you are being investigated or have been charged with a federal crime, especially medical identity theft, you need to be aware that the case will be complex, and the potential penalties are harsh. Usually, federal crimes come with additional penalties beyond just prison and large fines, which can even include a mark on your reputation and stress in the family.
It is important that you reach out to an experienced criminal defense attorney.
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The Statute On Medical Identity Theft
Because medical identity theft includes more than just one act, it is likely that you will be charged with at least two crimes. This is because your alleged act amounts to a combination of identity theft and a type of health care fraud. These crimes will likely fall under the basic health care fraud statute or the making of false statements statute.
Identity Theft — 18 U.S.C. Section 1028
A key component of being charged with medical identity theft is that the act involves receiving some type of benefit from a health care program while using another person’s identity. The reason this is crucial to the charges against you is that it is usually a fraud or false statement made to receive those services.
Identity this, for the most part, is the basic act of using another individual’s personal information for an unlawful reason. The statute has a list of various acts, some of which include the following:
- Knowingly produce identification or false identification
- Knowingly transfer stolen identification or falsely produced identification
- Knowingly possess a false identification to use as your own to defraud the United States
- Knowingly possess or use another person’s identity in connection with unlawful activity that would be a violation of federal, state, or local law
Health Care Fraud — 18 U.S.C. Section 1347
Given that this is health care related, it is important that you are familiar with the health care fraud statute. It is likely that you will be charged with violating this statute if you have been accused of medical identity theft. The health care fraud statute does not describe a specific act; rather it gives and broad description of what is prohibited by law.
Essentially, the statute prohibits you from executing or attempting to execute a plan that will result in services, payments, or items provided by health care services. All depending on where you stand, the preventative measures change, for example:
- If you are a patient, one of the many ways that this statute would apply to you is because you are being accused of using another person’s identification, pretending it is your personal information and you are seeking medical services with that false information.
- If you are a doctor, one of the ways that this statute applies to you is that it alleges you made a claim to provide services for an individual when you did not actually perform those services.
Criminal Penalties For Acts Involving Federal Health Care Programs 42 U.S.C. Section 1320a(1)-(6)
Another broad statute is 42 U.S.C. Section 1320a(1)-(6), however it is easily explained as a statute that prohibits you from making false statements or aiding in the making of false states with the goal of receiving a benefit from a health care program or to make those statements in order to continue to receive the benefits from a health care program.
An example of making a false statement could be that you provided false personal information to a doctors office or when completing a form online for health care. Many people think of identification as something that only includes a physical id (think driver’s license); however, it also includes basic information about a person.
Healthcare Provider: A Deep-Pocket Target
The healthcare industry is a multi-billion-dollar business. Health care providers, through their control over payments and accounting, make them a potential target of identity fraud by their customers. However, both doctors and patients are both suspects in any identity theft cases.
Fraud exists because of critical inefficiencies in the system.
Typical identity theft can be detected by the victim within a matter of days, but medical identity fraud takes significant time to be detected. This is due to the lack of attention being put on the medical industry and how their processes work.
Identity theft does not stop with these individuals; the “victim” can also be a person who is deceased. While that may sound impossible, when it comes to fraud, any type of identity can be used. Generally, you might be accused of using a deceased person’s identity the same way that you would use a living person’s identity. The difference being the person is not around.
For example, a more common fraudulent practice could be that a doctor files for a health care benefit claiming that they have provided services to a patient. After looking into the billing, the government may find that the person who received these services was actually not alive on the date of services rendered.
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How is Medical Identity Theft Detected And Investigated
Whistleblowers And Reporting
One of the more basic ways that medical identity fraud can be detected is that the person whose information was used found out. They may have come across a statement which showed they received medical care when they did not.
Investigations By Government Agencies
Another way is that your medical identity theft has been discovered through the government’s Medicare Fraud Task Force.
In 2007, the federal government took action, when it was realized the incidents of health care fraud were growing and occurring more often than expected. As such, they created the Medicare Fraud Task Force. This task force reviews submission data for health care benefits. As it is large, they conduct this data review to determine if there is any type of fraud.
Generally, some things they are looking for include out of the ordinary billing, overbilling by a single patient or doctor, or odd requests from doctors. This is not to say that this is all they are looking for. The evidence they will use against you will essentially be claims and or submissions of services rendered and compare that to actual services received or rendered.
One of the other forms of investigating this crime is by speaking with witnesses. When the federal government begins to interview witnesses to build their case, they may even reach out to you for questioning. In the event that the federal government does reach out to you, it is in your best interest to speak with a federal criminal defense attorney, before doing so.
Sometimes, not all information the federal government needs is located within their benefit databases. In those instances, the federal government will try to collect or subpoena information. Just like answering questions, it is important to speak with a criminal defense attorney prior to responding to these requests.
Generally, if you are being investigated for medical identity fraud, it is likely that one of the many federal agencies is looking into your actions. These agencies may include:
- The Medicare Fraud Task Force
- The FBI
All depending on the information that these agencies find during their investigations, you will either be charged or not charged with a crime or crimes.
Penalties For Medical Identity Fraud
Each of the crimes that you are charged with is going to have a penalty provided by statute. If you are found guilty, the court will assess the severity of each charge and the facts related to them to determine the type of penalty. In addition to this, the court will also hear arguments from your criminal defense attorney and the prosecutor to get a better understanding of your case.
Identity theft under 18 U.S. Code Section 1028 comes with a penalty of a fine or up to 15 years in prison or both. Depending on the facts of your case and your criminal history, this can vary.
Under 18 U.S.C. Section 1347, the penalties for health care fraud are more severe. The initial penalty is a fine or imprisonment for up to 10 years. However, if you are charged with health care fraud that also caused serious bodily injury, then the term of imprisonment will change to up to 20 years. Further, if the act causes death, then your term of imprisonment can be life.
How health care fraud can turn into charges of serious bodily injury or death can be explained by an example of a doctor who ordered something unnecessary for a patient. Maybe a test of some sort. The test produces a complication, and the patient gets hurt, or dies. If the test is found unnecessary, and done to receive additional benefits, that will likely change your penalty.
Finally, you will likely be susceptible to penalties according to criminal penalties for acts involving federal health care programs under 42 U.S.C. Section 1320. This statute is more focused on how you will be ordered a monetary fine for your actions, and changes all depending whether you receive a misdemeanor or a felony, like:
- For a misdemeanor, the fine will be up to $10,000
- For a felony, the fine will be up to $25,000 with an optional term of imprisonment
Medical identity theft does not stop with these three charges and penalties. Depending on the type of investigation and the facts relating to your case, it can be alleged that you committed even more crimes. These additional crimes can include:
- Conspiracy (if you committed these acts with another person)
- RICO (if you are involved in a pattern of fraud concerning medical identity theft)
- Wire fraud (in the instance that you submitted claims while using the internet)
- Mail Fraud (if you submitted claims through the mail)
- Civil liability (not a crime, the possibility to be sued privately or by the government)
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As you can see, charges and penalties can stack up quickly. However, not all of your charges may be correct. Even further, depending on your case, you can possibly not get the maximum penalty. But to do so, you will need an experienced federal criminal defense attorney to work with you and investigate your case to find issues that will help defend your case.
Effects of Medical Identity Theft
Healthcare Provider liability is an impending threat to you or your organization’s finances and reputation. It is one of the most significant effects of medical identity theft. As explained earlier, Provider Liability will be premised on common law doctrine Vicarious Liability.
A victim may bring a suit against a health care provider on a theory of vicarious liability, but he must show that the perpetrator was an agent of the Provider and, whatever the agent did was within the scope of his employment.
Where the individual responsible for the identity theft was not an employee of the health care provider, like a physician hired as an independent contractor, it may not be possible to maintain a cause of action under vicarious liability.
The duty breached by the health care provider may vary based on the facts. On the one hand, a health care provider who failed to protect patient information may be directly liable for negligence for either failing to create a system to protect patient confidentiality or for failing to ensure that patient files are in fact protected.
Conversely, a health care provider that fails to adequately identify a patient, and thus allows an identity thief to obtain medical treatment at the victim’s expense, may be directly liable on a theory of negligence, or medical malpractice on a theory of breach of the standard of care for failure to identify.
The problem doesn’t end there; the financial element is not what’s most significant. Medical identity theft can lead to death. A patient fraudulently receiving medical care can cause a real patient to receive the wrong blood type, prescription, or even be misdiagnosed at a later time. In 2013, there were an estimated 1.84 million victims of medical identity theft costing $12.3 billion.
This could open up healthcare providers to vicarious or strict liability for being unable to maintain proper cybersecurity standards – vicarious and strict liability being:
Vicarious liability is a common law doctrine in which a person or entity can be held responsible for something someone else did or didn’t do. In this scenario, a provider can be held responsible for the acts and omissions of its physicians or weak IT department.
Strict liability is more dangerous for the Providers because it is an imposition of liability without the establishment of fault. The law imposes it in dangerous situations to prevent lax behavior and loss. Medical identity theft can lead to the death of a victim. Statistics show such theft keeps growing and it makes the provider susceptible to claims.
In the event that you are sued based on civil liability, it is unlikely that you will be represented by a criminal defense attorney. However, an experienced criminal defense attorney will be aware of the effects that your criminal case can have on your civil case.
A criminal defense attorney who is not experienced in medical identity theft may not be aware of the repercussions that the steps taken in the criminal case can have on a civil case.
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Defenses For Medical Identity Theft
Having a defense in all cases is important. This is because defenses help either get your case dismissed, help you be found not guilty, or even mitigate the severity of your penalties. In a federal case, defense is even more important because of the severe penalties that are allowed.
Defenses for medical identity theft can be difficult to establish. However, they are not impossible. There could be a chance that law enforcement got their investigation all wrong.
For example, it could be that you are a doctor and you actually provided services to a patient, but the patient used another person’s identity. Maybe that stolen identity was a dead person. If it is possible to prove that you actually provided services to a patient, then that could be a defense.
If you are a patient, and the hospital you went to entered in your information incorrectly. That could be a defense. And many defenses are provided by statute, like the statute of limitations. The statute of limitations is a timeline in which the government must bring charges against you. If they wait beyond that timeline, charges cannot be brought.
If you suspect anything, like you are under surveillance or, you are being framed, call a criminal defense attorney experienced in dealing with medical identity theft cases. It is likely that law enforcement is going to talk to you. And before you decide to speak with law enforcement, seek the advice of a criminal defense attorney.
The law allows you to refuse to answer enforcement agencies without an attorney. It is important that you seek the advice and representation of an experienced criminal defense attorney to help avoid the severe penalties that come with federal charges.