N.J. Model Criminal Jury Charge, N.J.S.A. 2C:21-4.3a

Approved 12/9/02

HEALTH CARE CLAIMS FRAUD: KNOWING PRACTITIONER

(N.J.S.A. 2C:21-4.3a)

The defendant is charged in count _____ of the indictment with health care claims fraud.

Our statutes provide that:

A practitioner is guilty of a crime. . . if that person

knowingly commits health care claims fraud in the

course of providing professional services.

In order to convict defendant, the Stat e must prove beyond a reasonable doubt the

following elements:

(1) that he/she is a practitioner

(2) that he/she committed health care claims fraud

(3) that he/she committed the fraud in the course of providing professional

services and

(4) that he/she acted knowingly.

The first element that the State must prove beyond a reasonable doubt is that defendant is

a practitioner.

1 A practitioner is [choose one]

(1) a person licensed in this State to practice medicine and surgery,

chiropractic, podiatry, dentistry, optometry, psychology, pharmacy,

nursing, physical therapy or law.

OR

(2)

a person licensed, registered or certified by a State agency to practice

his/her profession or occupation in the State of New Jersey.

OR

(3)

a person licensed to practice medicine and surgery, chiropractic, podiatry,

dentistry, optometry, psychology, pharmacy, nursing, physical therapy or

law in another jurisdiction [or a person licensed, registered or certified to

practice his/her profession or occupation in another jurisdiction].

The second element the State must prove beyond a reasonable doubt is that defendant

committed health care claims fraud. Health car e claims fraud means ma king or causing to be

1 N.J.S.A. 2C:21-4.2.

HEALTH CARE CLAIMS FRAUD;

KNOWING PRACTITIONER

N.

J.S.A. 2C:21-4.3a

made a false, fictitious, fraudulent or misleading statement of material fact in a record, bill, claim

or other document. It also includes omitting a ma terial 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 mate rial if it could have affected the decision to

pay or reimburse for the health care services.3

The third element that the State must prove beyond a reasonable doubt is that ______

committed the fraud in the course of providing professional services. That is, the State must

prove beyond a reasonable doubt that he/she committed the health care fraud in connection with

the performance of his/her occupation or profession as ____________ (specify type of

practitioner).

The fourth element that the State must prove beyond a reasonable doubt is that defendant

acted knowingly. A person acts knowingl y with respect to the nature of his/her conduct or the

attendant circumstances if he/she is aware that hi s/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 wi ll cause such a result. "Know ing," "with knowledge," or

equivalent terms have the same meaning. Knowingl y 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 hi s/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]

INFERENCE

#14

2 If attempt is charged, the me ntal state is purposeful. See Attempt charge. N.J.S.A. 2C:5-1.

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.

HEALTH CARE CLAIMS FRAUD;

KNOWING PRACTITIONER

N.

J.S.A. 2C:21-4.3a

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 he/she or 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 st atement of facts in the record, bill, claim or

document submitted for payment or reimbursement for treatment or procedure was false,

fraudulent or misleading.

INFERENCE

#25

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 perfor med, then you may infer that the st atement of facts in the record,

bill, claim or document submitted for payment or reimbursement for treatment or procedure was

false, fraudulent or misleading.

INFERENCE

#36

If you find that ________ signed or initialed a re cord, bill, claim or other document, then

you may infer that he/she read and reviewed the record, bill, claim or other document.

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 an inference should be

drawn is for you to decide using your own co mmon sense, knowledge and everyday experience.

Ask yourselves is it probable, l ogical and reasonable. Howeve r, you are never required or

compelled to draw an inference. You alone de cide whether the facts and circumstances shown

by the evidence support an infere nce and you are always free to draw or not to draw an

inference. If you draw an inference, you shou ld weigh it in connect ion with all the other

evidence in the case keeping in mind that the bu rden of proof is upon the State to prove all the

elements of the crime beyond a reasonable doubt.

5 N.J.S.A. 2C:21-4.3f(2). Absent some evidence that a non-medical practitioner, such as a lawyer, 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 practitioners.

6 N.J.S.A. 2C:21-4.3f(3). An instruction regarding this statutory inference may be given only with respect to

a practitioner.

HEALTH CARE CLAIMS FRAUD;

KNOWING PRACTITIONER

N.J.S.A. 2C:21-4.3a

If you find that the State has proven beyond a reasonable doubt each of the four elements,

that is, that defendant is a practitioner, that he/she committed health care claims fraud, that

he/she committed the health care claims fraud in the course of providing professional services

and that he/she acted knowingly, then you must find defendant guilty of th e crime of health care

claims fraud. If the State has failed to prove any of these el ements beyond a reasonable doubt,

then you must find defendant not guilty.