Supreme Court Takes Up Medicaid Fraud Case

The U.S. Supreme Court has taken up for full briefing and argument a case regarding Medicaid fraud and the Identity Theft Penalty Enhancement Act, Dubin v. United States, No. 22-10.  What is the question presented? Here is the petitioner’s version:

The federal aggravated identity theft statute provides: “Whoever, during and in relation to any felony violation enumerated [elsewhere in the statute], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person, shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1).

The question presented is whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.

And here is the respondent’s (i.e., the Government’s):

Whether sufficient evidence supported the jury’s finding that petitioner “use[d]” the means of identification of another person to commit fraud, in violation of 18 U.S.C. 1028A(a)(1), by submitting a Medicaid claim invoking a specific patient’s right to reimbursement for a fictitious three-hour examination by a licensed psychologist on a date when that patient would have been eligible for the reimbursement.

Are these people talking about the same case?

Petitioner Dubin is the managing partner of a psychiatric facility. The facility did a 2.5 hour evaluation of a child, identified as Patient L, in April 2013, a time when Patient L’s Medicaid benefits for the period had been exhausted. Dubin later directed an employee to bill Medicaid for a 3 hour evaluation in May 2013, when Patient L once again had benefits, an evaluation that never actually happened. In billing Medicaid, the patient’s identifying information is, of course, used.

The petitioner and the dissenting judges in the Fifth Circuit refer to this as an “identity theft” case, but notice that term in not used in the operative text of the statute quoted above. It is, however, used in the caption of the section and the bill which enacted it. Here are some excerpts from Pub. L. 108-275, 118 Stat. 831:

———-

SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Identity Theft Penalty Enhancement Act’’.

SEC. 2. AGGRAVATED IDENTITY THEFT.
(a) IN GENERAL.—Chapter 47 of title 18, United States Code, is amended by adding after section 1028, the following:

‘‘§ 1028A. Aggravated identity theft
‘‘(a) OFFENSES.—

‘‘(1) IN GENERAL.—Whoever, 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, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

*      *      *

‘‘(c) DEFINITION.—For purposes of this section, the term ‘felony violation enumerated in subsection (c)’ means any offense that is a felony violation of—

*      *      *

‘‘‘‘(5) any provision contained in chapter 63 (relating to mail, bank, and wire fraud) ….’’.

———-

Among other things, Dubin was charged with and convicted of health care fraud, 18 U.S.C. § 1347, which is included in the paragraph (c)(5) offenses.

Looking only at the text of paragraphs (a)(1) and (c)(5) of this statute, Dubin qualifies for the enhancement. A person does not have “lawful authority” to use someone else’s “means of identification” to commit fraud. If we consider the captions, title, and apparent purpose of the statute, though, it appears that the wording of the text is much broader than the apparent purpose of the statute. There does not seem to be any purpose in punishing this instance of Medicaid fraud any more severely than other Medicaid frauds. I think that people who scam benefit programs deserve strong punishment, but this one does not seem to be more grievous than the run of the mill.

But does the judicial branch have the authority to fix the legislative branch’s drafting errors? Do captions count? Stay tuned.

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