United States v. Harris, __ F.3d __, 2020 WL 7705577 (9th Cir. Dec. 29, 2020)
Shelia Harris, who had a government contract to provide therapeutic health services to program members, submitted claims seeking payment for a speech pathologist who provided no services. The claims included the pathologist’s name and unique National Provider Identifier number. The pathologist was not aware of Harris’s fraudulent billing. Harris was charged with wire fraud and identity theft under 18 U.S.C. § 1028A, which criminalizes the knowing “use” of another’s means of identification, without their permission, “during and in relation” to the commission of an enumerated felony, including wire fraud. After Harris was convicted on all counts, she appealed the identity theft conviction, contending that she did not “use” the doctor’s identification “during and in relation to” the commission of the wire fraud.
The Ninth Circuit affirmed, holding Harris’s conduct met the definition of “use” under § 1028A because she exploited the doctor’s identification to “further or facilitate” the wire fraud. The court distinguished decisions holding that misrepresentations regarding the type of treatment performed do not support an identity theft claim. In those cases, neither the practitioner nor the patient had been misidentified. Drawing an analogy to cases involving the impersonation of a practitioner, the court then held that the definition of “use” under § 1028A was broad enough to encompass Harris’s misuse of the doctor’s identification to claim reimbursement for services that the doctor never performed because that misrepresentation furthered and facilitated the wire fraud.
Prepared by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy, LLP
California Society for Healthcare Attorneys
1215 K Street, Suite 800
Sacramento, CA 95814
