On November 10, 2022, the U.S. Supreme Court agreed to hear the case David F. Dubin v. United States out of the Fifth Circuit Court of Appeals.  David Dubin was convicted of healthcare fraud for overbilling Medicaid for the healthcare services provided to one of his patients.  Because Mr. Dubin included the patient’s identifying information with the fraudulent submission to Medicaid, he was also charged with and convicted of identity theft.

Mr. Dubin’s identify theft conviction was pursuant to the federal aggravated identity theft statute, which provides that anyone who “during and in relation to any felony violation . . . knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person, shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1).

Mr. Dubin contends that recitation of someone’s name, in his case on the Medicaid submission, should not be sufficient to warrant the add-on conviction of identity theft, which nearly tripled his sentence.  He points out that the “government disputed neither that petitioner in fact treated [the patient] nor that petitioner had the authority to use [that patient]’s name in billing. Nor did the government contend that the bill was false because of anything petitioner said (or didn’t say) about [the patient]’s identity.” (parenthesis in original).

The National Association of Criminal Defense Lawyers submitted an amicus, or “friend of the court,” brief to the Supreme Court arguing that the additional identity theft charge marks another example of overcriminalization by the federal government.  Oral arguments have not been set by the Court, and a decision in this case is not expected until next year.

The attorneys at Chilivis Grubman represent healthcare providers of all types and sizes in connection with government investigations and false claims allegations.  If you need assistance with such a matter, please contact us today.