Billing fraud in healthcare: what is really at stake

§ 263 Abs. 1 StGB covers anyone who, with the intention of obtaining an unlawful pecuniary benefit for themselves or a third party, damages the assets of another by causing or maintaining a mistaken belief through pretending that false facts exist or through distorting or suppressing true facts. Applied to billing, this means the allegation is that an invoice shows a service that was not provided in that form, not to that extent, or not by the person billing for it, and that the health insurance fund paid because of it.

The attempt is punishable under § 263 Abs. 2 StGB. The standard examples in § 263 Abs. 3 Satz 2 StGB name, among other things, acting on a commercial basis and a loss of property on a large scale. In billing cases the allegation of acting on a commercial basis is frequently raised, because typically the subject is not a single event but a practice running over several quarters.

§ 266 Abs. 1 StGB, breach of trust, comes into consideration where someone breaches a duty to safeguard the assets of another and thereby causes a detriment, with imprisonment of up to five years or a fine. § 266 Abs. 2 StGB declares § 263 Abs. 3 StGB, among others, to apply accordingly.

Where employees are involved, § 266a StGB comes on top of that, withholding and misappropriating remuneration, with imprisonment of up to five years or a fine, and in particularly serious cases under § 266a Abs. 4 StGB six months to ten years. This allegation appears in care services where the employment relationships are called into question at the same time.

This question is frequently asked too late.

Under § 95 Abs. 6 Satz 1 SGB V the Zulassung is to be withdrawn if its conditions are not met or are no longer met, if the panel doctor does not take up the panel practice or no longer carries it on, or if the doctor grossly breaches the duties of a panel doctor. That is a procedure before the accreditation bodies, not a criminal procedure.

For doctors the Approbation comes on top of that. § 3 Abs. 1 Satz 1 Nr. 2 BÄO (Bundesärzteordnung, the Federal Medical Practitioners Act) requires for the Approbation that the applicant has not been guilty of conduct from which their unfitness or unreliability to practise as a doctor follows. If this condition falls away later, the Approbation is to be revoked under § 5 Abs. 2 BÄO. § 5 Abs. 1 BÄO governs withdrawal for the case where a condition was already not met at the time it was granted, and draws a distinction there: the Approbation must be withdrawn only where the training requirement of § 3 Abs. 1 Satz 1 Nr. 4 BÄO was missing. If, on the other hand, unfitness or unreliability within the meaning of number 2 already existed at that time, it may be withdrawn under § 5 Abs. 1 Satz 2 BÄO. That is a discretionary decision and not automatic.

At what sum or from what conduct onwards a withdrawal of the Zulassung or a revocation of the Approbation comes into consideration, the statute does not say. These are decisions on the individual case by the competent bodies and courts. Anyone who names you a threshold for this is going beyond what can responsibly be said.

For the defence, a practical point follows from this: an agreement in the criminal proceedings aimed at a quick ending can work to your disadvantage in the professional law proceedings, because the factual findings continue to have effect there. Both strands belong together from the outset.

For you the case usually begins with a search, a hearing, or a letter from the health insurance fund demanding money back.

The most important point: under § 136 Abs. 1 Satz 2 StPO (Satz means sentence; StPO is the Strafprozessordnung, the German Code of Criminal Procedure), you are free to comment on the accusation or to make no statement on the matter, and you may consult a defence lawyer at any time, including before your interview. Explanations about billing practice look harmless at first sight, but they lay open the very structure on which the allegation of acting on a commercial basis is later pinned.

The second point concerns the insurer's claim for repayment. It is the third strand, alongside the criminal proceedings and professional law. Those letters have their own time limits and their own logic. A payment or a statement made in that context can be read as an admission in the criminal proceedings. Do not therefore treat these matters separately, but align them with one another.

The third point is § 203 StGB. Before you pass on patient records, including to advisers, clarify on what basis that is being done.