8.128B Soliciting or Receiving Kickbacks in Connection with Medicare or Federal Health Care Program Payments

8.128B SOLICITING OR RECEIVING KICKBACKS IN CONNECTION WITH
 MEDICARE OR FEDERAL HEALTH CARE PROGRAM PAYMENTS
(42 U.S.C. § 1320a-7b(b)(1)(A))

The defendant is charged in [Count ______ of] the indictment with [soliciting] [receiving] kickbacks in connection with [Medicare] [federal health care program] payments in violation of Section 1320a-7b(b)(1)(A), of Title 42 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly and willfully [solicited] [received] [specify remuneration alleged];

Second, the [specify remuneration alleged] was [solicited] [paid] primarily in order to [induce] [and] [or] [in exchange for] the referral of a patient insured by [Medicare] [specify federal health care program ] for [furnishing] [arranging for the furnishing] of an item or service;

[and]

Third, the patient’s items or services [furnished] [arranged to be furnished] were covered, in whole or in part, by [Medicare] [specifiy federal health care program]; [and]

[Fourth, [Medicare] [specify federal health care program] is a federal health care program.]

Comment

This instruction is largely based on the Eighth Circuit’s Model Criminal Instruction 6.42.1320, as modified per the Ninth Circuit’s decision in United States v. Hong, 938 F.3d 1040, 1048-49 (9th Cir. 2019).　　

Approved 12/2019