HEALTH CARE CLAIMS FRAUD
RECKLESS PRACTITIONER
(N.J.S.A.
2C:21-4.3b) 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 recklessly 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
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 recklessly. A
person acts recklessly with respect to the result of his/her
conduct if he/she consciously disregards a substantial and
unjustifiable risk that the result will occur from his/her
conduct. The risk must be of such a nature and degree that, considering the
nature and purpose of the actor’s conduct and the circumstances known to the
actor, its disregard involves a gross deviation from the standard of conduct
that a reasonable person would observe in the actor’s situation. One is said to act recklessly if one acts
with scorn for the consequences, heedlessly or fool-hardily. Recklessness 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 recklessly did something. His/Her
recklessness 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]
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 recklessly, 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). 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 nonmedical 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 persons.
[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.