Prof. Joan Krause on Health Care Fraud

Joan KrauseIn the fifth installment of the Spring 2011 Faculty Workshop Series, sponsored by the Frances Lewis Law Center, Professor Joan H. Krause, Professor of Law at the University of North Carolina-Chapel Hill School of Law, came to speak today about her paper, Skilling and the Pursuit of Health Care Fraud.

In the paper, Prof. Krause discusses health care fraud, a universally recognized problem with our health care system today. Health care fraud is actionable under a wide range of criminal, civil and administrative laws, including the Anti-Kickback Statute, the False Claims Act, and even mail and wire fraud statutes. She notes that mail and wire fraud cases generally fall into three categories, involving a scheme to defraud the victim of: tangible property, intangible property, or the intangible right to honest services. The first two involve traditional cases, where the perpetrator defrauds the victim directly. The latter eliminates the requirement that the victim suffer the loss to the perpetrator. For this any many other reasons, Prof. Krause notes the many challenges to the honest services portion of mail and wire fraud cases, typically on constitutionally vague grounds.

The decision in Skilling v. U.S., 130 S. Ct. 2896 (2010), changed that. In Skilling, the Supreme Court narrowed the scope of the honest services provision to criminalize only bribery and kickback schemes. Prof. Krause argues that this clarification and narrowing of the provision may end up increasing the number of mail and wire fraud prosecutions for health care related matters. Mail and wire fraud cases carry stiffer penalties, allows the victim-patient to testify, and is far more expansive that other prosecution charges.

Many thanks to Professor Krause for visiting W&L and sharing her paper with the faculty.

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