Elisha Kobre Quoted in Law360 on Identity Theft Section Ruling Within Healthcare Context

Bradley attorney Elisha Kobre talked with Law360 on the U.S. Supreme Court’s rejection of a broad reading of what constitutes identity theft in the context of healthcare fraud. This reading was a significant tool that was often employed as leverage by prosecutors to extract plea deals for defendants who are wary of hefty sentences.

"Prosecutors have been using Section 1028A as leverage to get defendants in a lot of these run of-the-mill fraud cases, especially health care fraud cases, to plead guilty because they have this heavy penalty of a two-year mandatory minimum sentence," said Kobre.

"Now, as a result of the Supreme Court's ruling, the government is going to have substantially less leverage in these sorts of cases where they were previously able to charge Section 1028A and therefore won't be able to induce a plea to the underlying predicate offense," Kobre said. This ruling puts prosecutors in a more difficult position without leverage.

Prosecutors argued in a recent case that petitioner David Dubin's use of a patient's name on a fraudulent Medicaid claim form ran afoul of the statute; however, the Supreme Court says since the "crux" of Dubin's overbilling was "inflating the value of services actually provided" and his use of the patient's name was only "an ancillary part" of the misconduct, the contested activity wasn't covered by the identity theft law.

The Supreme Court's ruling leaves prosecutors with some wiggle room to maneuver in cases where an individual's information has been stolen or is being used in a completely fictitious
manner to obtain benefits or services. But the decision will also wipe out the "vast universe" of cases that the government brings that, as in Dubin's case, involve a defendant who passively uses information shared by an individual to aid efforts to fraudulently inflate the price of the services that were rendered, according to Kobre.

"It's no longer enough to say that aggravated identity theft has occurred because a defendant used the patient's name or information in concert with the fraud," Kobre said.

The full article, “Feds Lose 'Kicker' With High Court's Narrow ID Theft Take - Law360 Pulse,” was published by Law360 on June 16, 2023. (login required)