Aggravated identity theft under federal law 18 U.S.C. § 1028A(a)(1) allows for a two-year mandatory add-on sentence for defendants who use another person’s identity “in relation to” certain felonies (known as predicate offenses). In 2023, the U.S. Supreme Court in Dubin v. United States addressed the scope of this provision in the context of a health care fraud case. The result was to significantly limit the circumstances when a defendant could be charged with aggravated identity theft.
Facts of Dubin
In Dubin, the defendant was accused of overbilling Medicaid for psychological testing services. He was convicted of health care fraud, a federal offense which is also a predicate offense under 18 U.S.C. § 1028A(a)(1). The government also charged the defendant with aggravated identity theft.
Section 1028A(a)(1) applies when a defendant, “during and in relation to any [predicate offense], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The government argued that the defendant fell within the statute because he used the patient’s name and Medicaid reimbursement number, a form of identification, in submitting the false bills. The Supreme Court disagreed.
Supreme Court’s Rationale
The Court held that §1028A(a)(1) is violated “when the defendant’s misuse of another person’s means of identification is at the crux of what makes the underlying offense criminal, rather than merely an ancillary feature of a billing method.” In Dubin, “the crux of petitioner’s overbilling was inflating the value of services actually provided, while the patient’s means of identification was an ancillary part of the Medicaid billing process.”
Importantly, the Court indicated that it isn’t enough for the prosecution to show that the identity theft facilitated the predicate offense or was a “but-for” cause of its success. Instead, “the means of identification specifically must be used in a manner that is fraudulent or deceptive.”
The defendant had the patient’s identification legitimately as a health care service provider. That it was used improperly did not constitute aggravated identity theft in this instance. The Court stated, “The fraud was in misrepresenting how and when services were provided to a patient, not who received the services.”
The Court also noted that since patient names and identifiers are typically used in billing, accepting the government’s interpretation would make overbilling cases automatically eligible for the aggravated identity theft enhancement.
The Supreme Court’s decision is important for defendants. It protects them from serving extra prison time for charges that don’t have the necessary nexus to the underlying health care fraud.
If you are facing allegations of health care fraud, contact us for a consultation to learn how we can help you.