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

Approved 12/9/02

HEALTH CARE CLAIMS FRAUD: RE CKLESS NONPRACTITIONER

(N.J.S.A. 2C:21-4.3d)1

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

recklessly 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 recklessly.

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 recklessly. A person acts recklessly with resp ect to the result of hi s/her conduct if he/she

consciously disregards a substantial and unjustifia ble risk that the result will occur from his/her

conduct. The risk must be of such a nature and degree that, considering the nature and purpose of

the actor’s conduct and the circumstances known to the actor, its disregard involves a gross

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

unless there is a factual dispute over whether defendant is, in fact, a practitioner.

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

RECKLESS NONPRACTITIONER

N.

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

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 ac ts with scorn for the cons equences, 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 necessary that witnesses be produced

by the State to testify that a de fendant said that he/she reck lessly did something. His/Her

recklessness may be gathered from his/her acts and his/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.

4 N.J.S.A. 2C:21-4.3f(1). Ordinarily, this inference will be applicable only to a medical practitioner. Query

whether, if the facts indicate that a non-practitioner is associ ated in fact with a medical practitioner, the inference is

applicable. 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

RECKLESS NONPRACTITIONER

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

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.

Ask yourselves is it probable, l ogical 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 health care claims fr aud and that he/she acted recklessly, 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.