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June 30, 2023

Supreme Court Limits Scope of Federal Aggravated Identity Theft Law

On June 8, 2023, in a 9-0 decision, the Supreme Court delivered a significant opinion in Dubin v. United States, limiting the ability of federal prosecutors to use the federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), in health care prosecutions.  Over the last decade, federal prosecutors have increasingly relied on the aggravated identity theft statute as a cudgel in federal health care investigations because it has a mandatory two-year prison sentence that it adds to any other statutory penalties (i.e., for substantive Anti-Kickback Statute or Health Care Fraud violations).  For instance, federal prosecutors frequently considered the mere act of using a beneficiary’s name and insurance identifier to bill claims that the Government believed were improper to be a violation of the aggravated identity theft statute, meaning that a defendant was now looking at an extra two years of prison time on top of whatever sentence may be imposed for the actual conduct at issue.  However, in Dubin, the Supreme Court put a definitive end to this practice by requiring federal prosecutors to establish that the identity theft is at the “crux” of what makes the conduct at issue criminal and not that the use of another’s identity is just an “ancillary feature of a payment or billing method.”  Further, to be at the “crux” of what makes the conduct criminal, the “use” of the individual’s identity has to be “fraudulent or deceptive” as to “‘who’ is involved, rather than just ‘how’ or ‘when’ services were provided.”  Merely “inflating the value of services actually provided” where the individual’s “means of identification was an ancillary part of the [insurance] billing process” is insufficient to impose liability under this statute.

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