WASHINGTON (CN) — The Supreme Court appeared skeptical Monday as the government defended a maximalist reading of identity theft that would expose an Austin psychologist to a lengthier prison sentence for defrauding Medicaid.
“When you really get down to it, all health care fraud is done using people's names,” Justice Elena Kagan noted during arguments this morning in Washington.
The case stems from a mental health testing company called Psychological ARTs, operated by father-and-son psychologists William and David Dubin. In 2013, as the son, David, was examining a patient, the visit was cut short after the father realized the patient’s Medicaid benefits had already been exhausted. The younger Dubin still instructed an employee to file a reimbursement claim to Medicaid, including the patient’s name and ID number, which resulted in the canceled exam falsely qualifying for payment.
A jury later convicted both Dubins on multiple charges. For filing a phony Medicaid reimbursement form, David Dubin, the son, was sentenced in 2019 to three years in prison on health care fraud and identity theft charges. The Fifth Circuit affirmed, but Dubin's lawyer fought Monday for a reversal in Washington, saying the conviction “stretches the aggravated identity theft statute beyond its breaking point.”
“It does not meet any ordinary understanding of the term ‘identity theft,’” said Jeffrey Fisher, an attorney for Dubin with the Stanford Law School Supreme Court Litigation Clinic.
Assistant to the U.S. Solicitor General Vivek Suri insisted that the both convictions should stand.
“In this case, you can't possibly charge a particular Medicaid account fraudulently without using that patient's Medicaid number. And, therefore, the use of the Medicaid number is on any reasonable definition in relation to that particular fraud,” Suri said.
The issue of the authorization appeared to puzzle Justice Clarence Thomas, who used a valet parking service as a hypothetical.
“The valet is authorized to drive it generally," Thomas said. "Not to drive it around the city, but to park it, so I don't see how this is any different from that. “He [Dubin] is authorized to bill the appropriate charges. But it's not a general authorization.”
Fisher saw the instance differently.
“I think, with all due respect, what your hypothetical would do is ask whether the item was used lawfully, not whether the person had authority in a general sense,” said Fisher. “And I think one other analogy that we give the court in our brief is burglary law, which is a common criminal law thing where you don't ask whether the person had authority to enter the building to commit a crime because nobody has that kind of authority.”
Justice Ketanji Brown Jackson presented another hypothetical Monday, asking Fisher how general his analysis was.
“I give the waiter my credit card, and rather than charging me for the food, he charges me to pay down his mortgage with my credit card. Is that use with or without lawful authority and why?” Jackson asked.
Fisher said it would be use without authority “because, when you give your credit card to the waiter, you are assuming that the waiter is going to charge you for the meal, or at least, at least something from the restaurant.”
Suri said otherwise.
“Let's say the customer ordered steak, and the waiter uses the credit card to ring up a bottle of wine as well. I think the discussion earlier today established that the waiter was acting without lawful authority,” Suri said. “He had the authority to use the credit card number to bill only for the food that was ordered. He didn't have the authority to use it for other things, whether it be wine or Amazon.com products. Or paying down his mortgage.”