HEALTH CARE CLAIMS FRAUD:
KNOWING PRACTITIONER
(N.J.S.A.
2C:21-4.3a) model jury charge
The defendant is charged in count
_____ of the indictment with health care claims fraud. Our statutes provide that:
A practitioner is guilty
of a crime. . . if that person knowingly commits health care claims fraud in
the course of providing professional services.
In order to convict defendant, the
State must prove beyond a reasonable doubt the following elements:
(1) that he/she is a
practitioner
(2) that he/she
committed health care claims fraud
(3) that
he/she
committed the fraud in the course of providing professional services and
(4) that he/she acted
knowingly.
The first element that the State
must prove beyond a reasonable doubt is that defendant is a practitioner.[1] A practitioner is [choose one]
(1) a
person licensed in this State to practice medicine and surgery, chiropractic,
podiatry, dentistry, optometry, psychology, pharmacy, nursing, physical therapy
or law.
OR
(2) a
person licensed, registered or certified by a State agency to practice his/her profession or occupation in the State of New
Jersey.
OR
(3) a
person licensed to practice medicine and surgery, chiropractic, podiatry,
dentistry, optometry, psychology, pharmacy, nursing, physical therapy or law in
another jurisdiction [or a person licensed, registered or certified to practice
his/her profession or occupation in another
jurisdiction].
The second element the State must
prove beyond a reasonable doubt is that defendant committed health care claims
fraud. Health care claims fraud means
making or causing to be made a false, fictitious, fraudulent or misleading
statement of material fact in a record, bill, claim or other document. It also includes omitting a material fact or
causing a material fact to be omitted from a record, bill, claim or other
document. The statement or omission may
be made in writing, electronically or in any other form. The defendant must have submitted or
attempted[2] to
submit or caused to be submitted or attempted to cause to be submitted the
statement or omission of material fact for payment or reimbursement for health
care services.
The statement of fact or omitted
fact is material if it could have affected the decision to pay or reimburse for
the health care services.[3]
The third element that the State
must prove beyond a reasonable doubt is that ______ committed the fraud in the
course of providing professional services.
That is, the State must prove beyond a reasonable doubt that he/she
committed the health care fraud in connection with the performance of his/her occupation or profession as ____________
(specify type of practitioner).
The fourth element that the State
must prove beyond a reasonable doubt is that defendant acted knowingly. A
person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he/she is
aware that his/her conduct is of that nature, or that such
circumstances exist, or he/she is
aware of a high probability of their existence.
A person acts knowingly with respect to a result of his/her conduct if he/she is
aware that it is practically certain that his/her conduct will cause such a result. "Knowing," "with
knowledge," or equivalent terms have the same meaning. Knowingly is a
state of mind and cannot be seen and can only be determined by inference from
conduct, words or acts. Therefore, it is
not necessary that witnesses be produced by the State to testify that a
defendant said that he/she
knowingly did something. His/Her knowledge may be gathered from his/her acts and his/her conduct and from all he/she said
and did at the particular time and place and from all the surrounding
circumstances reflected in the testimony [and evidence adduced at trial].
[CHARGE
IF APPLICABLE]
INFERENCE #1[4]
If you find that defendant
submitted, attempted to submit, caused to be submitted or attempted to cause to
be submitted any record, bill, claim or other document for treatment or
procedure without he/she or his/her
associate having performed the assessment of the physical [or mental] condition
of the patient or client that would be necessary to determine the appropriate
course of treatment, then you may infer that the statement of facts in the
record, bill, claim or document submitted for payment or reimbursement for
treatment or procedure was false, fraudulent or misleading.
INFERENCE #2[5]
If you find that __________
submitted, attempted to submit, caused to be submitted or attempted to cause to
be submitted records, bills, claims or other documents for more treatments or
procedures than can be performed during the time in which the treatments or
procedures were represented to have been performed, then you may infer that the
statement of facts in the record, bill, claim or document submitted for payment
or reimbursement for treatment or procedure was false, fraudulent or
misleading.
INFERENCE #3[6]
If you find that ________ signed or
initialed a record, bill, claim or other document, then you may infer that he/she read
and reviewed the record, bill, claim or other document.
An inference is a deduction of fact
that may be drawn logically and reasonably from another fact or group of facts
established by the evidence. Whether or
not an inference should be drawn is for you to decide using your own common
sense, knowledge and everyday experience.
Ask yourselves is it probable, logical and reasonable. However, you are never required or compelled
to draw an inference. You alone decide
whether the facts and circumstances shown by the evidence support an inference
and you are always free to draw or not to draw an inference. If you draw an inference, you should weigh it
in connection with all the other evidence in the case keeping in mind that the
burden of proof is upon the State to prove all the elements of the crime beyond
a reasonable doubt.
If you find that the State has
proven beyond a reasonable doubt each of the four elements, that is, that
defendant is a practitioner, that he/she
committed health care claims fraud, that he/she
committed the health care claims fraud in the course of providing professional
services and that he/she acted
knowingly, then you must find defendant guilty of the crime of health care
claims fraud. If the State has failed to
prove any of these elements beyond a reasonable doubt, then you must find defendant
not guilty.
[3] This
definition has been adapted from the definition of materiality found in the
perjury model jury charge. See Model
Jury Charges, Criminal, Perjury, N.J.S.A. 2C:28-1b (approved March
30, 1993).
[4] N.J.S.A.
2C:21-4.3f(1). In a case where the
inference is applicable only to one defendant but not another, a limiting
instruction must be given to the jury.
[5] N.J.S.A.
2C:21-4.3f(2). Absent some evidence that
a non-medical practitioner, such as a lawyer, had knowledge of the number of
procedures or treatments being claimed and the time during which they were
claimed to have been performed, as well as how long it should take to perform such
procedures or treatments, this inference should not be charged with respect to
such practitioners.
[6] N.J.S.A.
2C:21-4.3f(3). An instruction regarding
this statutory inference may be given only with respect to a practitioner.