Medicaid and Identity Theft
“[A] Medicaid beneficiary can consent to the use of her unique identifying number for lawful purposes, such as filing a claim for covered benefits. But when the provider fraudulently overbills for services . . . the provider is doing so ‘without lawful authority’ because fraudulent billing submissions are unlawful.”
William Joseph Dubin and his son David Fox Dubin were convicted of several offenses of Medicaid fraud. The Fifth Circuit granted rehearing en banc to decide whether there was sufficient evidence to support David Dubin’s conviction under 18 U.S.C. 1028A(a)(1), the identity-theft statute. This was an issue of first impression. The Court held that Medicaid fraud can support a conviction under 18 U.S.C. 1028A(a)(1).
David Dubin was convicted under 18 U.S.C. 1347(a) of “defraud[ing] a[] health care benefit program” or “obtain[ing], by means of false or fraudulent pretenses [or] representations . . . money . . . owned by, or under the custody or control of, a[] health care benefit program.” He was also convicted under 18 U.S.C. 1349 of conspiracy to commit a Section 1347(a) offense.
The issue before the Court was the proper construction of Section 1028A(a)(1), which provides a sentencing enhancement. That section provides “[w]hoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person” shall receive an additional two years of imprisonment. Because Dubin’s convictions were enumerated in subsection (c)(5) of Section 1028A, the Court had to resolve the meaning of the phrase “uses, without lawful authority, a means of identification of another person.”
“Relevant here,” the Court said, “is Dubin’s fraudulent billing pertaining to Patient L, who was a minor and whose initials are AS. Dubin had the ‘lawful authority’ to use Medicaid Patient L’s identifying information to obtain lawful reimbursements from the government for covered services, but Dubin also ‘use[d]’ Patient L’s identifying information ‘during and in relation to’ the felonies of Medicaid fraud and conspiracy to commit Medicaid fraud. That “use,” the Court held, was “without lawful authority.”
The Court concluded that Section 1028A(a)(1)’s sentencing enhancement applies whether the defendant fraudulently billed Medicaid when no services were provided or he fraudulently overcharged Medicaid for services provided.
Nothing in the statute permits a distinction between using identifying information to submit an entirely fabricated claim for Medicaid benefits and using the same information to submit a partially fabricated claim. . . . [I]n both scenarios, the “use” of the identifying information would be “without lawful authority.”