Health Care Fraud in the Second Degree

New York Penal Law § 177.20

Health Care Fraud in the Second Degree is a Class C Felony.  The possible sentence is up to 15 years in prison.

In order to obtain a conviction for this offense, the prosecution must prove beyond a reasonable doubt that:

1.  the defendant knowingly and willfully provided materially false information or omitted material information for the purpose of requesting payment from a health plan for a health care item or service;

2.  the defendant did so with an intent to defraud the health plan;

3.  as a result of the materially false information or omission, the defendant or another person received payment in an amount they were not entitled to under the circumstances; and

4.  the amount of the payment(s) received from a single health plan exceeded $50,000 in a single year.

A "person" means any individual or entity.  The recipient of a health care item or service under a health plan (i.e., the patient) is not considered a "person" for purposes of this statute, unless they acted as an accessory to the person who received the payment.

A "health plan" means any publicly or privately funded health insurance or managed care plan or contract, under which any health care item or service is provided, and through which payment may be made to the healthcare provider.  The definition of "health plan" includes both private insurance and government programs such as Medicaid.

Affirmative Defense

The law recognizes an affirmative defense to this crime if the defendant proves that they were a clerk, bookkeeper, or other employee who, without personal benefit, merely executed the orders of their employer or of a superior employee generally authorized to direct their activities.  The affirmative defense is not available, however, to employees who are charged with the active management and control, in an executive capacity, of the corporation.

Full Text of New York Penal Law § 177.20

"A person is guilty of health care fraud in the second degree when such person, on one or more occasions, commits the crime of health care fraud in the fifth degree and the payment or portion of the payment wrongfully received, as the case may be, from a single health plan, in a period of not more than one year, exceeds fifty thousand dollars in the aggregate.  Health care fraud in the third degree is a class C felony."

Punishment

Health Care Fraud in the Second Degree is a Class C felony.  If convicted, the court may impose a sentence of up to 15 years in prison.

John Howley, Esq.
The Howley Law Firm P.C.
​350 Fifth Avenue, 59th Floor
New York, New York 10118
(212) 601-2728