(N.J.S.A.
2C:21-4.3c) 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:
(1) that he/she
committed health care claims fraud
(2) that he/she acted
knowingly.
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]
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.
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 inferences 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 this inference. It is your exclusive province to determine
whether the facts and circumstances shown by the evidence support any inference
and you are always free to accept or reject any inference.
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
knowing 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
whether 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]
If, however, after consideration of
all of the evidence, you find that committed health care claims fraud, but you
are not convinced beyond a reasonable doubt that he/she did so
knowingly, you must find the defendant not guilty of knowing health care claims
fraud and go on to consider whether the defendant should be convicted of
reckless health care claims fraud.
A person is guilty of reckless
health care claims fraud if he/she 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].
Therefore, if you find that the
State has proven beyond a reasonable doubt both of the elements, that is, that committed health care claims fraud and that he/she acted
recklessly, then you must find defendant guilty of the crime of reckless 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.
[1] This
provision applies only to non-practitioners and should not be charged in cases
involving only practitioners unless there is a factual dispute over whether the
defendant is, in fact, a practitioner. Ordinarily,
the lesser offense of reckless health care claims fraud should be given as a
lesser offense of knowing health care claims fraud, so long as the facts at
trial justify the lesser offense. N.J.S.A.
2C:1-8; State v. Brent, 137 N.J. 107 (1994). If only knowing, or only reckless, health
care claims fraud is to be charged, read only the appropriate individual
charge, infra.
[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 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.