United Arab Emirates: Do Acts Of Health Insurance Fraud Always Constitute Criminal Offences Under The Emirati Penal Code?

Last Updated: 20 September 2017

"Health Insurance Fraud, Abuse, Misuse and Mistakes and Errors impose financial burdens not only on Insurers and Insured Persons, but on Healthcare Providers, the government of Abu Dhabi, and Employers and Sponsors in the Emirate of Abu Dhabi. In certain cases, they also put at risk patient health and the quality of healthcare"1. Indeed, combatting Health Insurance Fraud, Abuse, Misuse and Mistakes and Errors is not only intended to safeguard the interests of Insurance Companies by preventing financial losses and ensuring compensations, but also to safeguard a professional and ethical medical environment. More importantly, combatting Health Insurance Fraud intends to deter persons from committing such acts usually constituting criminal offences.

In general, Health Insurance Fraud, Abuse, Misuse and Mistakes and Errors are subject to administrative2 and civil3 recourses. More particularly, acts of Health Insurance Fraud may be subject to criminal prosecution since, as previously mentioned, they usually constitute criminal offences.

The Law does not contain any definition of Health Insurance Fraud. However, the Health Authority of Abu Dhabi (the "HAAD") in its Insurers' Manuel has defined Health Insurance Fraud as "an intentional act of deception by any person which has as its purpose the objective of: (i) obtaining a (financial or other) benefit or advantage related to the operation of the Health Insurance Scheme; or (ii) causing or exposing another person to a (financial or other) loss or disadvantage related to the operation of the Health Insurance Scheme, whether or not that act in fact achieves its intended purpose"4. According to this definition:

(1) The perpetrator of Health Insurance Fraud can be "any person". In practice, such acts may be committed by healthcare providers, healthcare professionals, insured persons, insurance companies, third party administrators, brokers, agents, or any other persons. (2) Health Insurance Fraud is necessarily an intentional act, i.e., the perpetrator of Health Insurance Fraud must be fully aware that he is committing fraud.

(3) The perpetrator may have as objective the obtaining of a financial (or other) benefit or causing or exposing another person to a financial (or other) loss or disadvantage. Thus, obtaining a personal benefit is not a pre-requisite.

(4) The motives of the perpetrator are not taken into account. Indeed, having noble motives (e.g. a doctor helping a patient by billing an uncovered service as a covered service, an insured person lending his insurance card to his neighbor) does not change the fact that the concerned person intended to defraud the insurance company.

(5) The perpetrated acts may be qualified as Health Insurance Fraud irrespective of achieving the intended purpose. In other words, such acts constitute Health Insurance Fraud as long as the perpetrator intended to commit Health Insurance Fraud in order to obtain a financial (or other) benefit or to cause or expose another person to a financial (or other) loss or disadvantage, irrespective if as a result of such acts he obtains any financial (or other) benefit or if he causes or exposes another person to a financial (or other) loss or disadvantage.

According to the Insurers' Manuel issued by the HAAD, the latter may issue a document which will detail a non-exhaustive list of examples of Health Insurance Fraud, Abuse, Misuse and Mistakes and Errors5. Since it is impossible to set out an exhaustive list of examples of Health Insurance Fraud, we can only list few common examples: (a) billing unperformed services; (b) undertaking uncovered services and billing them as covered services; (c) declaring a fake identity to subscribe to insurance schemes restricted to low income employees; (d) inflating procedures and thus bills; (e) keeping people longer than necessary in a hospital or an intensivecare unit; (f) charging for a more complex treatment than actually performed; (g) forging medical reports to obtain undue reimbursements (h) providing fake medical certificates; (i) adjustment of the medical fees by a patient when he directly submits the invoices to the insurance company; (j) creation of false medical histories (etc.).

As previously mentioned, acts of Health Insurance Fraud usually constitute criminal offences. One of the most commonly committed criminal offenses is Fraud under the Emirati Penal Code, according to which Fraud is committed when the perpetrator "succeeds in appropriating, for him or for others, movable property, a deed or a signature thereon, cancellation, destruction or amendment thereof through deceitful means or use of false name or capacity, whenever this leads to deceit the victim and cause him to give away"6. In light of this definition, the qualification of Fraud requires (a) the fulfillment of fraudulent acts in order to (b) obtain a personal financial (or other) benefit or benefits for others, provided that such acts (c) lead to the deceit of the victim and cause him to give away.

By comparing the definition of Fraud under the Penal Code and the definition of Health Insurance Fraud, we can stress on the following two main distinctions:

(a) As regards the objectives of the perpetrator: The objective of obtaining a personal financial (or other) benefit or benefits for others is a pre-requisite for the qualification of Fraud under the Emirati Penal Code, while the objective of Health Insurance Fraud can be the obtaining of a personal benefit or causing or exposing another person to a (financial or other) loss or disadvantage.

(b) As regards the consequences of the perpetrated acts: The perpetrated acts may be qualified as Health Insurance Fraud irrespective of achieving the intended purpose, while fraudulent acts under the Emirati Penal Code must lead to the deceit of the victim and the appropriation of a personal financial (or other) benefit or benefits for others.

Based on the above comparison, it is clear that the acts of the perpetrator of Health Insurance Fraud do not automatically fall under the qualification of Fraud under the Penal Code.

In order to be qualified as Fraud under the Penal Law, (a) the objective of the perpetrator must be the obtaining of a personal financial (or other) benefit or benefits for others, and (b) the committed acts must achieve their intended purpose (i.e. the deceit of the victim and the appropriation of a personal financial (or other) benefit or benefits for others).

Other criminal offences are usually committed in order to defraud the health insurance scheme, the most common of which is forgery7 which is an act of alteration through one of the methods specified under Article 216 of the Penal Code, resulting in a prejudice to the victim. For example, some healthcare professionals forge their medical certificates or statements8 in order to bill uncovered services as covered services, or to obtain undue reimbursements for services not performed. In other instances, some insured persons forge their identity documents9 to subscribe to insurance schemes restricted to a certain category of employees.

In practice, most of the acts of Health Insurance Fraud usually fall under the qualifications of Fraud and/or Forgery. However, acts of Health Insurance Fraud, which are always subject to administrative and civil recourses under the Health Insurance Law10 and the Civil Transactions Code, do not necessarily constitute criminal offences. Therefore, it is strongly recommended to undertake, on a case by case basis, an in-depth legal and factual assessment in order to ensure that the committed acts could be qualified as criminal offences. Such assessments will allow the claimant to avoid any potential liabilities for false accusations.

Footnotes

1 Insurers' Manuel, Health Authority of Abu Dhabi, p. 43.

2 Under Article 21 of the Executive Regulations for Law No. (23) of 2005 regarding the Health Insurance Scheme in the Emirate of Abu Dhabi.

3 Under Article 282 et seq. of the Emirati Civil Transactions Code.

4 Insurers' Manuel, Health Authority of Abu Dhabi, p. 54.

5 Insurers' Manuel, Health Authority of Abu Dhabi, p. 43.

6 Article 399 of the Emirati Penal Code.

7 Subject to Articles 216 et seq. of the Emirati Penal Code.

8 Which constitutes a felony under Article 219 of the Emirati Penal Code pursuant to which "shall be sentenced to imprisonment for a period not exceeding five years, every physician or midwife knowingly issuing a forged certificate or statement concerning pregnancy, delivery, disability, death or other matters related to his profession, regardless of the fact whether this act is the result of a wish, recommendation or intermediation".

9 Which also constitutes a felony under Article 217 of the Emirati Penal Code pursuant to which "Unless otherwise provided, forging an official written instrument shall be sanctioned by imprisonment for a term not exceeding ten years and forgery of an unofficial document shall be punished by detention".

10 Law No. (23) of 2005 regarding the Health Insurance Scheme in the Emirate of Abu Dhabi.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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