983 F.3d 1125
9th Cir.2020Background
- Sheila Harris owned Harris Therapy, Inc., a Honolulu therapy provider contracted with TRICARE.
- From 2008–2012 Harris submitted claims to TRICARE billing for speech therapy she did not provide, including fabricated appointments.
- For two September 2011 claims Harris listed employee Kara Spheeris as the rendering provider and entered Spheeris’s name and NPI, though Spheeris was on maternity leave and had provided no services or authorization.
- Harris signed the claim forms herself; TRICARE would have denied payment had it known Spheeris was not the rendering provider.
- A jury convicted Harris of wire fraud, two counts of aggravated identity theft under 18 U.S.C. § 1028A (alleging use of Spheeris’s identification), and other counts; Harris appealed the § 1028A convictions.
- The Ninth Circuit affirmed, holding Harris’s use of Spheeris’s name and NPI constituted “use” under § 1028A because it was integral to and facilitated the fraudulent claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether entering another provider’s name and NPI on fabricated claims is a “use” of that person’s means of identification under 18 U.S.C. § 1028A | Harris: Not a "use" because she did not impersonate or pass herself off as Spheeris; analogous to Hong/Medlock where identifying info did not further fraud | Government: Harris employed Spheeris’s identifying information to create and submit fraudulent claims; the identifiers were central to the fraud | Affirmed — entering Spheeris’s name and NPI constituted “use” because it was employed to fashion and further the fraudulent submissions |
| Whether Harris’s signing of patient claim forms using patients’ names/NPI constituted "use" under § 1028A | Not briefed on appeal | Not briefed on appeal | Court declined to decide this claim; left unresolved |
Key Cases Cited
- United States v. Hong, 938 F.3d 1040 (9th Cir. 2019) (held no § 1028A "use" where provider misrepresented the nature of services but did not impersonate patients)
- United States v. Gagarin, 950 F.3d 596 (9th Cir. 2020) (held § 1028A covered forging/impersonation used to pass as another and central to the fraud)
- United States v. Medlock, 792 F.3d 700 (6th Cir. 2015) (held defendants did not "use" patient IDs where they legitimately rendered services and misrepresented billing details)
- United States v. Michael, 882 F.3d 624 (6th Cir. 2018) (held "use" where defendant fabricated a submission using a doctor’s NPI and patient identifiers to create the fraud)
- United States v. Berroa, 856 F.3d 141 (1st Cir. 2017) (discussed "passing oneself off" standard relevant to § 1028A interpretation)