Page 2 - White-Collar Crime

S2 | Monday, July 7, 2014 | White-Collar Crime
| nylj.com

By John G. Martin
A
conviction for health care fraud, one
might reasonably assume, requires proof
of an actual fraud, and a correspond-
ing intent to defraud. There is no shortage of
available definitions of these two concepts.
Non-legal dictionaries variously define “fraud”
as “deceit” or “trickery,” or, more specifically,

“intentional perversion of truth in order to
induce another to part with something of value
or to surrender a legal right.”1 Black’s Law
Dictionary defines fraud as the “knowing mis-
representation of the truth or concealment of a
material fact to induce another to act to his or
her detriment.”2 The Second Circuit notes that
a scheme to defraud “has been described as a
plan to deprive a person ‘of something of value

by trick, deceit, chicane or overreaching.’”3
Similarly, intent to defraud is frequently
defined as requiring proof “that the defen-
dant had a ‘conscious knowing intent to
defraud ... [and] that the defendant contem-
Health Care Fraud:
plated or intended some harm to the prop-
erty rights of the victim.’”4 Alternatively, a
defendant acts with intent to defraud when

he acts “with the specific intent to deceive
What’s Intent Got and to cause harm.”5
The concepts of fraud and fraudulent
intent seem simple enough to apply, at least
on the surface. But something about placing
the words “health care” in front of these terms
To Do With It?
tempts federal prosecutors to broaden the
definitions, and to seek to include within their
reach conduct which, although admittedly

wrong on some level, is already addressed
through regulatory prohibition and punish-
ment, and to substitute prison sentences for
the fines and debarments historically used to
sanction such conduct. Using a wrong billing
code,6 failing to police the management and
billing practices of others,7 or suggesting to
doctors that they legally prescribe certain

medicines, have resulted in jail sentences.8

Turning Up the HEAT

The efforts to expand criminal liability in

John G. Martin is a partner at Garfunkel Wild, where
he specializes in health care fraud matters. He is a
former assistant district attorney in New York County
and a former assistant U.S. Attorney in the Eastern
District of New York.

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