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

Approved 12/9/02

HEALTH CARE CLAIMS FRAUD: KNOWING/RECKLESS NONPRACTITIONER1

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

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

Our statutes provide that

A person is guilty of a cr ime. . . if that person

knowingly commits health care claims fraud.

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

following elements:

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

(2) that he/she acted knowingly.

The first element that 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

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 second 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 hi gh 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

1 This provision applies only to non-practitioners and should not be charged in cases involving only

practitioners unless there is a factual dispute over whether th e defendant is, in fact, a practitioner. Ordinarily, the

lesser offense of reckless health care claims fraud should be given as a lesser offense of knowing health care claims

fraud, so long as the facts at trial justify the lesser offense. N.J.S.A. 2C:1-8; State v. Brent, 137 N.J. 107 (1994). If

only knowing, or only reckless, health care claims fraud is to be charged, read only the appropriate individual

charge, infra.

2 If attempt is charged, the mental 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).

HEALTH CARE CLAIMS FRAUD:

KNOWING/RECKLESS NONPRACTITIONER

N.

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

certain that his/her conduct wi ll cause such a result. "Know ing," "with knowledge," or

equivalent terms have the same meaning. Knowi ngly 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

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 his/her associate having performed the assessmen t of the physical [or mental]

condition of the patient or client that would be necessary to dete rmine the appropriate course of

treatment, then you may infer that the statement of facts in the record, bill, claim or document

submitted for payment or reimbursement for trea tment 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.

An inference is a deduction of fact that may be drawn logically and reasonably from

another fact or group of facts es tablished by the evidence. Whethe r or not inferences should be

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

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.

5 N.J.S.A. 2C:21-4.3f(2). Absent some evidence that a nonpractitioner 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 persons.

HEALTH CARE CLAIMS FRAUD:

KNOWING/RECKLESS NONPRACTITIONER

N.

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

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

compelled to draw this inferen ce. It is your exclus ive province to determine whether the facts

and circumstances shown by the evidence support any inference and you are always free to

accept or reject any inference.

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

is, that defendant committed hea lth care claims fraud and that he/she acted knowingly, then you

must find defendant guilty of the crime of health care claims fraud. If the State has failed to

prove either of these elements beyond a reasonable doubt, then you must find defendant not

guilty.

[CHARGE IF THE INDICTMENT CONTAINS A SECOND DEGREE COUNT]

If you find defendant guilty of the offense of knowing health care claims fraud, then you

must further determine whether th e pecuniary benefit obtained or sought to be obtained was at

least $1,000 and whether defendant knowingly committed five or more acts of health care claims

fraud. The pecuniary benefits obtained or sought to be obtained and the number of acts of health

care claims fraud committed must be proven by the State beyond a reasonable doubt. You must

indicate whether you find that the State has proven beyond a r easonable doubt that defendant

committed five or more acts of health care claims fraud and whether the pecuniary benefit

obtained or sought to be obtai ned was at least $1,000. The am ounts obtained or sought to be

obtained during each separate act of health car e claims fraud may be aggregated or added

together to determine whether the pecuniary benefit is at least $1,000.

6

If, however, after considerati on of all of the evidence, you find that committed

health care claims fraud, but you are not convinced beyond a reason able doubt that he/she did so

knowingly, you must find the defendant not guilty of knowing health care claims fraud and go on

to consider whether the defendant should be convicted of reckless health care claims fraud.

A person is guilty of reckless health care claims fraud if he/she acted recklessly. A

person acts recklessly with resp ect to the result of his/her c onduct if he/she consciously

disregards a substantial and unjustifiable risk that the result will occur from his/her conduct. The

6 A verdict sheet should be submitted which will allow the jury to set forth its findings on whether the State

has proven beyond a reasonable doubt 1) that defendant committed five or more acts of health care claims fraud and

2) that the pecuniary gain obtained or sought to be obtained was at least $1,000.

HEALTH CARE CLAIMS FRAUD:

KNOWING/RECKLESS NONPRACTITIONER

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

risk must be of such a nature and degree that, considering the nature an d purpose of the actor’s

conduct and the circumstances known to the actor, its disregard involves a gross deviation from

the standard of conduct that a reasonable person would observe in the actor ’s situation. One is

said to act recklessly if one acts with scorn for the consequences, heedlessly or fool-hardily.

Recklessness 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 neces sary that witnesses be produced by the State to

testify that a defendant said that he/she reckle ssly did something. His/Her recklessness may be

gathered from his/her acts and his/her conduct and fr om all he/she said and did at the particular

time and place and from all the surrounding ci rcumstances reflected in the testimony [and

evidence adduced at trial].

Therefore, if you find that the State ha s proven beyond a reasonable doubt both of the

elements, that is, that

committed health care claims fraud and that he/she acted recklessly,

then you must find defendant guilty of the crime of reckless health care claims fraud. If the State

has failed to prove any of these elements beyond a reasonable doubt, then you must find

defendant not guilty.