Archives : 2006 : June

Health Care Fraud Through Identity Theft and Impersonation

By Brian Barrido, Attorney at Law and Jay Mykytiuk

Health care fraud is committed when someone intentionally submits, or causes someone else to submit, false or misleading information for use in determining the amount of health care benefits payable.  One of the most common varieties of health care fraud is perpetrated through medical identity theft.  Medical identity theft occurs when someone uses another person’s health insurance card or identification with or without her permission to obtain medical services.  An insured person commits fraud when he lends his health insurance card to another, who then impersonates the insured in order to receive free care.  An uninsured person commits fraud when she impersonates the insured to receive benefits she is not entitled to.  Sometimes the imposter has permission from the insured.  Other times, the imposter has stolen the insureds insurance information and used it without permission.  Each activity is a crime.

Consequences of Health Care Fraud

Health care fraud is not a victimless crime.  Medical identity theft can have dire consequences for the individual whose identity is fraudulently used.  It sometimes results in erroneous entries on that persons current medical records or the creation of brand new, fictitious medical records in the victims name.  For the victim, this may mean that a false medical and financial history that follows them around for years.  Imagine failing a physical required for employment due to a disease in your records that does not belong to you, or receiving a co-pay bill for a surgery that you never underwent.  These are only a sample of the personal consequences of medical identity theft.

Beyond the personal effects, health care fraud, including medical identity theft, also has a negative impact on the healthcare system as a whole.  It is estimated that losses due to fraud add $100 billion to the annual cost of health care in the United States. For most employers, fraud increases the cost of providing benefits to their employees and, therefore, their overall cost of doing business. That translates into higher premiums, taxes, and out-of-pocket expenses as well as reduced benefits and diminished quality of care.

Allowing Others To Use Your Health Care Information Could Lead to Prosecution

Whether you allow someone to use your health care information, or you wrongfully use some elses information, you can be prosecuted for fraud.  Health care providers and law enforcement have begun to aggressively pursue those who commit health care fraud. Health care fraud can be prosecuted both civilly and criminally under a variety of statutes and regulations.  The nations largest healthcare network, Blue Cross/Blue Shield estimates that they pursued more than 20,000 cases of health care fraud last year, with 606 cases referred to law enforcement agencies. Of the referrals, 206 resulted in criminal convictions (see http://www.bcbs.com/antifraud).

Too many people do not realize the cost to individuals and the health care industry, which are incurred through health care fraud. For this reason many people do not believe health care fraud to be a serious crime. Penalties for health care fraud can be severe.  Depending upon which statute an offender is prosecuted under, each count could carry a maximum penalty of 10 years.  Fraud resulting in bodily injury to the insured carries a penalty of up to 20 years.  If authorities or a private insurer wants to investigate you for health care fraud, you should immediately contact an attorney.

Breathtaking – Uncertainty and the Breathalyzer

By Vince Imhoff, Esq. & Dan Rhoads

A group of judges in New Hampshire was served several alcoholic drinks as part of an experiment that was intended to demonstrate the effectiveness of the Breathalyzer. One judge was given so many drinks that he became visibly intoxicated. When the judge blew into the Breathalyzer, the machine registered a score of 0.0. After a few more tries, the Breathalyzer gave the same result. Following the demonstration, at least one police jurisdiction in the state ceased using the Breathalyzer in favor of blood tests. (See Margaret Graham Tebo, New Test for DUI Defense, ABA Journal (Feb. 2005).)

Breathalyzer Less Accurate Than Blood Test

The Breathalyzer is less accurate than a blood test. Whereas a blood test actually measures blood alcohol concentration (BAC), the Breathalyzer merely estimates it. In recognition of this fact, South Dakota relies entirely on blood tests.

What the Breathalyzer attempts to measure is the presence of chemicals found in alcohol. But the machine often measures chemicals with molecular structures similar to those found in alcohol. According to Dr. David Hanson, Over 100 compounds can be found in the human breath at any one time, and 70 to 80 percent of them contain [a] methyl group structure and will be incorrectly detected as ethyl alcohol. (See David Hanson, Ph.D., Breath Analyzer Accuracy, at http://www2.potsdam.edu/hansondj/DrivingIssues/1055505643.html.) As a result, false positives can occur for a plethora of reasons.

Causes of False Positive Breathalyzer Tests

Body chemistry is one factor that can lead to false positives. People with diabetes, acid reflux disease, or some cancers can fail Breathalyzer tests even if their bloodstreams are perfectly free of alcohol. Diabetics, for example, have extraordinarily high levels of acetone, a substance that some breath machines mistake for ethyl alcohol.

Police recognize that regurgitation can render unreliable the results of a Breathalyzer. Thus, most departments require that the arresting officer observe the subject of a breath test for twenty minutes before its administration. Regurgitation includes any instance of fluids or gases that rise through the esophagus.

Breath Test Ruled Inadmissible in Court

In 2004, the Illinois Supreme Court ruled inadmissible the results of a breath test where the defendant presented evidence of gastroesophageal reflux disease (GERD). In People v. Bonutti, 817 N.E.2d 489 (Ill. 2004), the defendant had blown a BAC of 0.174 after being stopped and showing outward signs of intoxication. Defendants motion to suppress the Breathalyzer evidence was granted because the court found that the results could have been compromised by a silent, unobservable episode of reflux.

Non-alcoholic substances that people commonly ingest can register on the Breathalyzer. Smokers are often told to wait after consuming a cigarette because chemicals in the smoke can trick the machine. See, e.g., Ind. Admin. Code, tit. 260, r. 1.1-4-8 (providing that the subject of a Breathalyzer test must not smoke within 20 minutes prior to the time a breath sample is taken.) Some non-intoxicating, over-the-counter medications can do the same thing. Even various types of breads can account for BAC levels up to 0.05.

The Breathalyzer is also susceptible to error caused by environmental factors. If a driver has recently pumped gasoline, the alcohol in the fuel can remain on the drivers hands or clothes and can waft into the machine. Compounds that contain the methyl group structure appear in everyday chemicals, such as those found in paints, paint removers, and cleaners. Even electrical interference from cell phones and police radios can disturb the machine.

Women Face Higher Risk of False Positive Breath Tests

Women tend to be at a higher risk of registering a false positive than men. Some breath analysis machines presume a specified hematocrit, which is the percentage of whole blood that is composed of red blood cells. Men naturally have higher hematocrit values than women, but the machines do not adjust according to the sex of the subject. A person with lower hematocrit might have an artificially high BAC reading. Thus, women as a class are in jeopardy of this kind of error. (Hematocrit values can also fall due to blood loss; so, a person tested after being in an accident can register a false positive, adding insult to injury.)

Breathalyzers as Court Evidence

Portable Breathalyzers, which are utilized at traffic stops, are even less reliable than their stationary counterparts. In most jurisdictions, the results from a portable Breathalyzer machine merely provide probable cause to arrest drivers. These machines are susceptible to inaccuracy for reasons as simple as the administering officers improper calibration or carbon monoxide emissions from passing cars. But states are increasingly allowing those results to be used as evidence at trial.

Traditionally, defending a DUI case consisted of attacking the arresting officers probable cause, the officers training in recognizing intoxication, and the polices chain of custody for physical evidence. But as the state relies increasingly on technology to prove its cases, defense attorneys must stay a step ahead in their understanding of the equipment and its shortcomings.

Likewise, a criminal defendant should not concede the accuracy of a Breathalyzer but should hire an attorney who has the time and energy to ensure that dubious test results do not become evidence at trial.

Occupational Hazard: False Allegations of Child Abuse Against Educators

By Brian Barrido, Esq. and Jay Mykytiuk

A school custodian was accused of sexual abuse by five girls. The charges were later dropped when the girls admitted that they had fabricated the story because the custodian had reported them for vandalizing a restroom. An Assistant Superintendent jumped off a bridge to his death after being accused of abusing a student. He had been cleared of any wrongdoing earlier that day. A social studies teacher was accused of molesting a student during a school field trip. Eleven months later, his name was cleared when his accuser recanted. A nine year-old girl offered to pay each of her friends one dollar if they would accuse her teacher of abuse.

False allegations of child abuse against teachers and other school employees can be economically, emotionally, and financially devastating. It can lead to criminal prosecution and long jail terms. And it is a real phenomenon. One school administrator claims to receive 10-12 false accusations of abuse against teachers every year. Multiplied across the country, this number is staggering and disturbing.

Sexual Abuse Allegations Used Against Teachers

Because crimes against children are so horrific, naturally accusers are taken seriously. What this means for accused teachers, is that they are usually presumed guilty presumption that can be very difficult to overcome. The most common motive of students who falsely accuse their teachers is to punish teachers who either disciplined them or give them poor grades. A false accusation of physical or sexual abuse will usually ensure that the targeted teacher is, at the least suspended or fired, and at worst, brought up on criminal charges. If an investigation is not properly handled, or the accused educator is not adequately represented by legal counsel, they may lose their careers and their freedom.

Some schools are addressing the issue before the problem arises. School handbooks advise teachers not to have any physical contact with students. Others discourage teachers from ever being one-on-one with a student in a classroom. But despite these precautions, educators remain vulnerable to abuse charges due to the nature of their positions.

Consequences of a Child Abuse Conviction

The consequences of a guilty plea or conviction for physical or sexual abuse are potentially disastrous. Besides substantial jail time, the convicted abuser will lose his teaching license. If convicted of sexual abuse, one must register as a sex offender, and have their name and residence publicly posted. The convicted abuser will be barred from certain types of jobs, and will often be forced to undergo psychological treatment. This adds up to a steep price for simply choosing a career in education.

An educator accused of physical or sexual abuse against a child should seek counsel immediately. A competent attorney will investigate your case, gather character witnesses, and argue your case to the District Attorney. Your attorney should secure expert witnesses in the area of child psychology. In general, it is crucial that your attorney prepare a comprehensive legal strategy to combat the false accusations and prove your innocence.

False Child Abuse Allegations in Custody Battles

By Vince Imhoff, Attorney at Law and Jay Mykytiuk

Few experiences are more traumatizing than divorce proceedings.  When children are involved, anger and hurt feelings can lead to poor judgment and dangerous decisions. False child abuse often sexual abuse allegations are sometimes the result. When it comes to child abuse, innocent until proven guilty, can give way to a powerful societal urge to protect children.  Sadly, this fact makes child abuse accusations a very powerful weapon in custody battles.

Child abuse is certainly a serious and pervasive problem.  In most situations, abuse allegations are made responsibly and based on actual abuse.  But in the context of divorce proceedings or custody battles, there is a greater chance that an abuse allegation made by one spouse against another is without merit.  While different studies have produced different results, many experts estimate that between 75 and 80 percent of divorce-related child abuse allegations are completely false.  In most cases, the abuse allegations are made by the woman against her ex-husband.

Why Are Child Abuse Allegations Common in Divorce Cases?

There are a variety of reasons one parent makes a false allegation of child abuse against their ex-spouse.  Sometimes, the allegation is simply based on a misunderstanding caused by the increased sensitivity resulting from the divorce.  Individuals going through a divorce often feel victimized, and their hostility and anger may cause them to think the worst about their former spouses.  For example, following a visit, the parent may react to the childs anxious behavior any physical blemish by immediately concluding that the other parent has physically or sexually abused the child.

Often, however, a spouse makes a false allegation deliberately, either to hurt the other parent or to obtain custody of the child.  The vindictive spouse will coach the child to make allegations against the accused spouse, and then attempt to find a doctor or therapist who will support the false claim.  Mandatory reporting laws, requiring health and educational professionals to report all child abuse claims to child welfare agencies or law enforcement who impose penalties on teachers, doctors, nurses, therapists, and other licensed professionals for not reporting the allegations.  Consequently, proving ones innocence can be an uphill battle.

Consequences of Child Abuse Allegations

The consequences of child abuse allegations can be devastating.  While child abuse and sexual abuse allegations are usually difficult to prove, the mere accusation guarantees a protracted and difficult legal battle.  This battle often concludes with the loss of custody of the child, and imprisonment of the accused.  Your best chance to successfully defend a false child abuse allegation is to retain qualified legal counsel.  Even when you know that you have done nothing wrong, you must take your defense seriously.  Because the consequences of a child abuse conviction are so costly, you will need an attorney skilled in representing people in this type of case.