How Can a Licensed Healthcare Professional Get a Healthcare Fraud Indictment Dismissed?

Most healthcare fraud charges start with the issuance of an indictment by a grand jury. The indictment is a document that sets forth the charges and is intended to put the defendant on notice of the charges and the conduct at issue. 

Generally, Rule 7(c)(1) of the Federal Rules of Criminal Procedure requires a health care fraud indictment provide a “plain, concise and definite written statement of the essential facts constituting the offense charged.” Fraud offenses, such as healthcare fraud, should contain a detailed description of the health care fraud scheme to ensure the defendant has sufficient notice of the offense. This usually means the indictment must set forth all the elements of health care fraud.

To establish health care fraud under 18 U.S.C. §1347, the government must prove beyond a reasonable doubt that the defendant:

1. 1. devised a scheme or artifice to defraud a health care benefit program in connection with the delivery of or payment for health care benefits, items, or services;
   2. executed or attempted to execute this scheme or artifice to defraud;
   3. acted knowingly and willfully with the intent to defraud; and
   4. the scheme to defraud employed false pretenses, representations, or promises. 

More specifically, an indictment in a health care fraud case must set forth what the scheme was designed to deprive the victim of (money, items or services) and then describe the means the scheme was designed to be accomplished. 

An indictment must also allege that the fraud related to a material element of the conditions of participation for the health benefit program (Medicaid, Medicare, private insurance). For instance, if a provider billed a 99215 but did not spend any face-to-face time with the patient, the government must allege that failure to see the patient was a material element.

There are many other factors that may make a health care fraud indictment insufficient. For instance, payment of a kickback alone is not enough to establish health care fraud.

An attorney must also review the statute of limitations to see if the indictment is time barred by the five-year statute of limitations set forth in 18 U.S.C. § 3282(a), although the statute of limitations generally begins to run when the crime is complete.

In addition, healthcare fraud will generally be considered a continuing offense, meaning that it is considered complete when all the fraudulent actions alleged are finished.