HEALTH CARE CLAIMS
FRAUD: KNOWING NONPRACTITIONER
(N.J.S.A.
2C:21-4.3c)[1] model jury charge
The defendant is charged in count
_____ of the indictment with health care claims fraud. Our statutes provide that
A person is guilty of a
crime. . . if that person knowingly commits health care claims fraud.
In order to convict defendant, the
State must prove beyond a reasonable doubt the following elements:
The first element that 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 second 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 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.
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 elements, that is, that defendant
committed health care claims fraud 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 either of
these elements beyond a reasonable doubt, then you must find defendant not guilty.
[CHARGE
IF THE INDICTMENT CONTAINS A SECOND DEGREE COUNT]
If you find defendant guilty of the
offense of health care claims fraud, then you must further determine whether
the pecuniary benefit obtained or sought to be obtained was at least $1,000 and
whether defendant knowingly committed five or more acts of health care claims
fraud. The pecuniary benefits obtained
or sought to be obtained and the number of acts of health care claims fraud
committed must be proven by the State beyond a reasonable doubt. You
must indicate whether you find that the State has proven beyond a reasonable
doubt that defendant committed five or more acts of health care claims fraud
and that the pecuniary benefit obtained or sought to be obtained was at least
$1,000. The amounts obtained or sought
to be obtained during each separate act of health care claims fraud may be
aggregated or added together to determine whether the pecuniary benefit is at
least $1,000.[6]
[1] This
provision applies only to non-practitioners and should not be charged in cases
involving practitioners unless there is a factual dispute over whether the
defendant is, in fact, a practitioner.
[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). Ordinarily, this
inference will be applicable only to a medical practitioner. 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 nonpractitioner 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 persons.
[6] A
verdict sheet should be submitted which will allow the jury to set forth its
findings on whether the State has proven beyond a reasonable doubt 1) that
defendant committed five or more acts of health care claims fraud and 2) that
the pecuniary gain obtained or sought to be obtained was at least $1,000.