Supreme People's Court Supreme People's Procuratorate Ministry of Public Security
Circular on Guidance on Several Issues Concerning the Handling of Criminal Cases of Health Insurance Fraud
Law [2024] No. 6
Higher People's Courts, People's Procuratorates and Public Security Departments (Bureaus) of provinces, autonomous regions and municipalities directly under the Central Government, Military Courts and Military Procuratorates of the People's Liberation Army, the Branch of the Higher People's Court of the Xinjiang Uygur Autonomous Region for the Production and Construction Corps, and the People's Procuratorate and Public Security Bureau of the Xinjiang Production and Construction Corps:
In order to punish the crime of medical insurance fraud in accordance with the law, effectively safeguard the safety of the medical insurance fund, and safeguard the legitimate rights and interests of the people's medical insurance, and in conjunction with the actual work, the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security are now jointly issuing the “Guiding Opinions on Several Issues Concerning the Handling of Criminal Cases of Medical Insurance Fraud,” and are requested to conscientiously carry them into effect. Please conscientiously implement the Guidelines. Any major problems encountered in their implementation should be reported to the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security respectively.
Supreme People's Court Supreme People's Procuratorate Ministry of Public Security
February 28, 2024
In order to punish the crime of medical insurance fraud in accordance with the law, safeguard the safety of the medical insurance fund, safeguard the legitimate rights and interests of the people, according to the “Criminal Law of the People's Republic of China”, “Criminal Procedure Law of the People's Republic of China” and other relevant provisions, is hereby put forward on the handling of the criminal case of medical insurance fraud on a number of issues, the following opinions.
I. Comprehensively grasping the overall requirements
1. A deep understanding of the significance of punishing medical insurance fraud in accordance with the law. Medical insurance fund is the people's “medical money”, “life-saving money”, about the people's interests, about the healthy and sustainable development of the medical insurance system, about the long-term stability of the country. To effectively raise the political position, a profound understanding of the great significance of the law to punish the crime of medical insurance fraud, continue to deepen the problem of medical insurance fraud rectification, punish the crime of medical insurance fraud in accordance with the law, and effectively safeguard the safety of the medical insurance fund, safeguard the legitimate rights and interests of the people's medical insurance, and promote the healthy and sustainable development of the medical insurance system, and constantly enhance the people's sense of access, happiness and security.
2. Adhere to the strict law in handling cases. Adhering to the facts as the basis and the law as the criterion, adhering to the legal principles of the law of crimes and punishments, adjudication by evidence, and acceptance of crimes on the basis of suspicion, and in strict accordance with the standards and requirements for proof of evidence, comprehensively collecting, fixing, examining, and determining evidence, to ensure that the facts of each criminal case of medical insurance fraud are clear, the evidence is true and sufficient, and that the conviction is accurate, the sentencing is appropriate, and the procedure is lawful. Effectively implement the criminal policy of leniency and leniency and the system of leniency in pleading guilty and accepting punishment, the leniency is lenient, when strict is strict, leniency and strictness, the punishment is appropriate, to ensure that the crime and responsibility of the punishment is appropriate, to achieve the unity of the political effect, the legal effect and the social effect.
3. Adhering to the division of labor, coordination and mutual restraint. Public security organs, people's procuratorates and people's courts should give full play to their investigative, prosecutorial and adjudicative roles, strengthen collaboration and cooperation, establish a long-term working mechanism, and form a synergy of efforts, so as to punish medical insurance fraud crimes in accordance with the law, in a timely and effective manner. Adhere to the trial as the center, strengthen the sense of evidence, procedural awareness, referee awareness, give full play to the trial in the ascertainment of the facts, the identification of evidence, the protection of the right to appeal, the decisive role in the just decision, effectively strengthen legal supervision, to ensure strict enforcement of the law, fair justice, and improve the credibility of the judiciary.
II. Accurate identification of health insurance fraud crimes
4. The criminal cases of medical insurance fraud referred to in this opinion refer to criminal cases in which fraudulent means are used to obtain medical insurance funds.
The medical insurance fund includes the basic medical insurance (including maternity insurance) fund, the medical aid fund, the employees' large medical expense subsidy, the civil servant's medical subsidy, and the residents' big disease insurance fund.
5. If a designated medical institution (medical institution or drug business unit) commits one of the following acts for the purpose of illegal appropriation and fraudulently obtains expenditure from the medical insurance fund, the person who organizes, plans or commits the act shall be convicted and punished for the crime of fraud in accordance with Article 266 of the Penal Code; and if the act also constitutes any other crime, the person shall be convicted and punished in accordance with the provisions of the provisions that prescribe the more severe penalties:
(1) Inducing or assisting another person to seek medical treatment or purchase medicines under an impostor's name or under false pretenses, providing false certificates, or colluding with another person to falsely bill for expenses;
(2) Falsifying, altering, concealing, defacing, or destroying medical documents, medical certificates, accounting vouchers, electronic information, test reports, and other relevant information;
(3) Fictitious medical service items, false billing for medical services;
(4) Decomposition of hospitalization, hospitalization with a bed;
(5) Duplication of charges, over-standard charges, decomposition of project charges;
(6) Exchanging medicines, medical consumables, diagnostic and treatment items and service facilities;
(7) Including medical expenses not covered by the medical insurance fund in the settlement of the medical insurance fund;
(8) Other fraudulent acts of medical insurance fund expenditure.
The medical insurance fund fraudulently obtained by the designated medical institution through the implementation of the acts stipulated in the preceding paragraph shall be recovered.
A state employee of a designated medical institution who takes advantage of the convenience of his or her position to commit the acts stipulated in the first paragraph and fraudulently obtains medical insurance funds shall be convicted and punished for embezzlement in accordance with the provisions of Articles 382 and 383 of the Criminal Law.
6. If the perpetrator commits one of the following acts for the purpose of unlawful appropriation and fraudulently obtains expenditure from the medical insurance fund, he shall be convicted and punished for the crime of fraud in accordance with the provisions of Article 266 of the Criminal Law; if he also constitutes other crimes, he shall be convicted and punished in accordance with the provisions of the provisions that prescribe the heavier punishment:
(1) Counterfeiting, altering, concealing, altering, or destroying medical documents, medical certificates, accounting vouchers, electronic information, test reports, and other relevant information;
(2) Using other people's medical insurance vouchers to seek medical treatment or purchase medicine under false names;
(3) Falsifying medical service items and making false medical service charges;
(4) Duplicating medical insurance benefits;
(5) Using the opportunity of enjoying medical insurance treatment to resell medicines, medical consumables, etc., and accepting the return of cash or in-kind goods or obtaining other illegal benefits;
(6) Other fraudulent acts of obtaining expenditure from the medical insurance fund.
The individual accounts of the insured persons pay for others in accordance with the relevant regulations for the medical expenses incurred at the designated medical institutions that are borne by the individuals, as well as the expenses incurred at the designated retail pharmacies for the purchase of medicines, medical devices and medical consumables that are borne by the individuals, which do not belong to the impersonation of medical treatment or purchase of medicines as stipulated in the preceding paragraph (2).
7. Staff members of medical insurance administrative departments and agencies who take advantage of their positions to defraud the medical insurance fund of expenditures shall be convicted and punished for the crime of embezzlement in accordance with the provisions of Articles 382 and 383 of the Criminal Law.
8. If the purchase of another person's medical insurance voucher (social security card, etc.) and its use for the purpose of cheating the medical insurance fund constitute at the same time the crime of buying and selling identity documents, the crime of using false identity documents, or the crime of fraud, the person shall be convicted and punished in accordance with the provisions of the Criminal Law that prescribe the heavier penalty.
If a person steals another person's medical insurance voucher (social security card, etc.) and swipes funds from his/her individual medical insurance account, he/she shall be convicted and punished for the crime of theft in accordance with the provisions of Article 264 of the Criminal Law.
9. Anyone who unlawfully acquires or sells medicines that he or she knows are purchased by means of medical insurance fraud shall be convicted and punished for the crime of disguising or concealing the proceeds of crime in accordance with the provisions of Article 312 of the Criminal Law and the relevant judicial interpretations; and anyone who instructs, abets, or authorizes another person to purchase medicines by means of medical insurance fraud and then unlawfully acquires or sells them shall be convicted and punished for the crime of fraud in accordance with the provisions of Article 266 of the Criminal Law.
Whether or not the perpetrator of using health insurance to fraudulently purchase medicines is held criminally liable shall not affect the conviction and punishment of the perpetrator of the illegal acquisition and sale of the medicines in question.
The subjective knowledge stipulated in the first paragraph shall be determined on the basis of a comprehensive determination of the marking of the drugs, the channels of acquisition, the price, the scale and the information on the traceability of the drugs. Where one of the following circumstances exists, the perpetrator may be found to have subjective knowledge, except where the perpetrator is able to state the lawful source of the drugs or give a reasonable explanation:
(1) The price of the drugs is obviously different from the market price;
(2) Having been criminally or administratively penalized for committing the illegal acquisition and sale of drugs purchased with the use of health insurance fraud;
(3) Those who make a business out of illegal acquisition and sale of medicines for basic medical insurance;
(4) Acquiring and selling basic medical insurance medicines to unspecified trading objects for a long time or repeatedly;
(5) Multiple acquisition and sale of basic medical insurance drugs using non-contact channels such as the Internet and mail;
(6) Others are sufficient to conclude that the perpetrator has subjective knowledge.
II. Punishing medical insurance fraud crimes in accordance with the law
10. The crime of medical insurance fraud is severely punished in accordance with the law, with emphasis on cracking down on behind-the-scenes organizers and professional insurance fraudsters, etc., and the leniency of those who have surrendered stolen goods and compensation, or who have pleaded guilty and admitted guilt, etc., should also be strictly grasped.
If one of the following circumstances exists, the punishment may be heavier:
(1) Organizing or directing a criminal gang to defraud the medical insurance fund;
(2) Having been criminally prosecuted for the crime of medical insurance fraud;
(3) Refusing to return stolen goods and compensation or transferring property;
(4) Causing other serious consequences or adverse social impact.
11. To handle criminal cases of health insurance fraud, we should synchronize the review of money laundering, violation of citizens' personal information and other criminal clues to achieve the full chain of punishment in accordance with the law. To be combined with the regularization of the fight against black and evil, to find, identify medical insurance fraud may exist in the gang of black and evil forces, digging deep medical insurance fraud behind the crime of corruption and “umbrella”, and resolutely punished in accordance with the law.
12. Whether the perpetrators of medical insurance fraud are held criminally liable should be decided in accordance with the law, taking into account the amount of the fraudulent use of the medical insurance fund, the means used, and the specific circumstances of the case, such as guilty plea and repentance, and the return of stolen goods and restitution.
If there are many people involved in the case, they shall be treated and dealt with differently according to the facts of the crime, the nature of the crime, the circumstances and the degree of harm to society, as well as their status and role in the joint crime and the specific acts they have carried out. Lighter penalties shall be imposed on first-time and occasional offenders who are not deeply involved in the crime, and lenient penalties shall be imposed on medical personnel and patients who plead guilty to the crime; where the circumstances of the crime are minor, no prosecution shall be instituted or the punishment shall be waived in accordance with the law; and where the circumstances are significantly less serious and the harm caused is not significant, the case shall not be dealt with as a crime.
13.依法正确适用缓刑，要综合考虑犯罪情节、悔罪表现、再犯罪的危险以及宣告缓刑对所居住社区的影响，依法作出决定。对犯罪集团的首要分子、职业骗保人、曾因医保骗保犯罪受过刑事追究，毁灭、伪造、隐藏证据，拒不退赃退赔或者转移财产逃避责任的，一般不适用缓刑。对宣告缓刑的犯罪分子，根据犯罪情况，可以同时禁止其在缓刑考验期限内从事与医疗保障基金有关的特定活动。
14.依法用足用好财产刑，加大罚金、没收财产力度，提高医保骗保犯罪成本，从经济上严厉制裁犯罪分子。要综合考虑犯罪数额、退赃退赔、认罪认罚等情节决定罚金数额。
IV. Effectively strengthening the collection, examination and judgment of evidence
15. In medical insurance fraud criminal cases, the chain is long, hidden and difficult to obtain evidence, and the public security organs should strengthen their investigation and evidence-gathering work, collecting and fixing evidence around the facts of the medical insurance fraud crime and the circumstances of the sentencing, focusing in particular on the collection and fixing of original evidence materials such as prescriptions, medical records and other raw evidence materials and the core evidence materials proving that the facts of the falsification and fraudulent use were committed, so as to identify the facts of the crime in-depth, and to refer the cases to the prosecutor according to the law. For major, difficult, complex and socially influential and highly concerned cases, the people's procuratorates may be heard when necessary.
16. The people's procuratorates shall perform their legal supervision duties in accordance with the law, strengthen the construction of an accusatory system centered on evidence, enhance early intervention, evidence review, and case filing supervision of criminal cases of medical insurance fraud, and actively guide the public security organs to carry out investigative activities and improve the evidence system.
17. The people's court shall strengthen the review and judgment of evidence in criminal cases of medical insurance fraud, comprehensively apply evidence, and review and determine the factual circumstances surrounding the conviction and sentencing, to ensure that the facts of the case are clear, and that the evidence is true and sufficient. Where additional evidence is deemed necessary, the People's Procuratorate shall be advised to conduct additional investigations in accordance with the law.
18. The medical insurance administrative department in the supervision and investigation of the collection of physical evidence, documentary evidence, audio-visual materials, electronic data and other evidentiary materials, verified by the court, and the collection procedures in line with the relevant laws and administrative regulations, can be used as the basis for the determination of the case.
19. In handling a criminal case of medical insurance fraud, where it is impossible to collect witness statements one by one due to the large number of witnesses and other objective limitations, it is possible to combine the witness statements that have been collected with the verified bank account transaction records, third-party payment and settlement vouchers, account transaction records, auditing reports, data from the medical insurance information system, electronic data, and other evidence, to make a comprehensive determination of the amount of the fraud and other facts of the crime.
20. The public security organs, the people's procuratorates and the people's courts shall, in respect of property seized, impounded or frozen in accordance with the law, comprehensively collect and examine the evidence proving its origin, nature, use, ownership and value, and deal with it in accordance with the facts ascertained in accordance with the law. If it is found to be irrelevant to the case, it shall be returned.
The public security organs and people's procuratorates shall examine and screen the property involved in the case. When handing over property for prosecution or filing a public indictment, they shall give opinions on the handling of the property involved.
21. All property obtained by the perpetrator of the crime of medical insurance fraud shall be recovered or ordered to be refunded in accordance with the law. If there is evidence that there is property that should be recovered in accordance with the law, but the whereabouts cannot be identified, or the value has been lost, or it is mixed with other legitimate property and is inseparable, the equivalent value of the property or the equivalent value of the part of the mixed property may be recovered. The amount of equivalent property recovered shall be limited to the amount of illegal proceeds that should be recovered in accordance with the law, and the portion that has already been recovered or refunded shall be deducted.
Evidence proving the circumstances of the preceding paragraph shall be obtained in a timely manner.
22. The public security organs, the people's procuratorates and the people's courts shall carry out the recovery and salvage of stolen property throughout the entire process of handling the case and in all its aspects, and shall make every effort to recover stolen property and salvage losses to the fullest extent possible. In the course of the people's courts' execution of the property involved in the cases, the public security organs, the people's procuratorates and the relevant functional departments shall cooperate, effectively fulfilling their obligation to collaborate, comprehensively applying a variety of means, and doing a good job of clearing and transporting the property involved in the cases, realizing the property, collecting the funds, and returning the property, etc., in order to minimize the losses of the medical insurance fund and safeguard the interests of the people to the greatest extent possible.
V. Establishment of a sound synergy mechanism
23. The public security organs and the people's procuratorates shall give timely advice to the administrative departments of the medical insurance system in the course of investigating fraudulent medical insurance acts or in the course of administrative law enforcement, where they consider the case to be significant, difficult and complex, and request advice or reference on such issues as the standard of prosecution and the fixing of evidence.
The public security organs of the medical insurance administrative department referred to the health insurance fraud criminal clues should be investigated in a timely manner, if necessary, can ask the relevant departments to assist and provide relevant evidence and materials, suspected of committing a crime in a timely manner to file an investigation. Medical insurance administrative departments or relevant administrative departments and pharmaceutical organizations should actively cooperate with the case-handling organs to retrieve relevant evidence, and do a good job of fixing and storing the evidence.
The public security organs, the people's procuratorate, the people's court does not constitute a crime, according to the law not to prosecute or exempted from criminal punishment of health insurance fraud perpetrators, need to be given administrative penalties, political sanctions or other sanctions, shall be transferred to the medical insurance administrative department and other relevant organs in accordance with the law.
24. The public security organs, the people's procuratorates, the people's courts and the administrative departments of medical insurance shall strengthen collaboration and cooperation, and improve the working mechanisms for the preliminary investigation of criminal cases of medical insurance fraud, the filing of cases for investigation, the examination and prosecution, and the trial and execution of such cases, and improve the mechanisms for the discovery, verification, transfer, processing and feedback of clues, and strengthen the analysis and judgment of criminal clues of medical insurance fraud, so as to timely discover, effectively prevent and punish crimes. Public security organs and medical insurance administrative departments should accelerate the promotion of information-sharing, build real-time analysis and early-warning monitoring models, and strive to “discover and crack down on medical insurance fraud at an early stage”, so as to minimize losses.
The public security organs, people's procuratorates, and people's courts shall promptly notify the administrative departments of medical insurance of the results of medical insurance fraud cases and the effective instruments.
25. When the public security organs, people's procuratorates and people's courts are handling criminal cases of medical insurance fraud, they may ask the administrative department of medical insurance or the relevant administrative department to assign professionals to cooperate in their work, to assist in reviewing and copying relevant professional information or in calculating the amount of loss to the medical insurance fund, and to issue opinions on the determination of the professional issues involved in the case. Matters involving administrative processing shall be promptly transferred to the administrative department of medical insurance or the relevant administrative department for processing in accordance with the law.
26. The public security organs, the people's procuratorates and the people's courts shall actively perform their duties, further extend their functions in handling cases, issue typical cases at the appropriate time according to the situation, carry out explanations of the law on the basis of the case, and strengthen publicity and education on the rule of law, so as to promote the masses' knowledge of the law and compliance with the law, and to jointly safeguard the normal operation of the medical insurance fund and the order of medical care and health care. In conjunction with the handling of cases and the discovery of problems in the use and supervision of the medical insurance fund, it sends reminder letters, procuratorial recommendations and judicial recommendations to the relevant departments, and focuses on tracking results, establishing and improving a long-term mechanism for the prevention of medical insurance fraud and crimes, and completely eradicating the breeding ground for illegal and criminal medical insurance fraud and crimes.
Source: People's Court News
