"Two highs and one high" jointly issued a document!
Strictly punish the crime of medical insurance fraud in accordance with law.
The Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security jointly held a press conference on the 1st to issue the "Guiding Opinions on Several Issues Concerning the Handling of Criminal Cases of Medical Insurance Fraud" (hereinafter referred to as the "Guiding Opinions") to further clarify the conviction and punishment of the crime of medical insurance fraud, the application of law, and the requirements for handling cases. There are 26 articles in the "Guiding Opinions", which will be implemented on February 28.
The "Guiding Opinions" accurately identify the crime of medical insurance fraud, including clarifying the scope of criminal cases of medical insurance fraud, medical security**, the behavior methods of medical security handling agencies, designated medical institutions, insured persons and other individuals who defraud medical security** and related criminal acts, as well as the conviction and punishment of the staff of the medical security administrative department and the handling agency taking advantage of their positions to defraud medical security**, so as to ensure the accurate identification of the crime.
The "Guiding Opinions" require that the crime of medical insurance fraud be severely punished in accordance with the law, focusing on cracking down on behind-the-scenes organizers and professional insurance fraudsters, etc., clarifying the circumstances of severe punishment and lenient punishment, strengthening the whole chain of punishment for crimes related to medical insurance fraud, increasing the force of property punishment, standardizing the application of fines and punishments, strictly grasping the application of suspended sentences, and unifying the standards for the application of law and the scale of judicial adjudication.
The Guiding Opinions clearly and effectively strengthen the collection, review and judgment of evidence. In criminal cases of medical insurance fraud, the chain is long, the concealment is deep, and it is difficult to collect evidence, and the public security organs should strengthen the investigation and collection of evidence, collecting and fixing evidence around the facts of the crime of medical insurance fraud and the sentencing circumstances, especially focusing on the collection and fixation of original evidence materials such as prescriptions and medical records, as well as core evidence materials proving the fact of forgery and fraud, to thoroughly ascertain the facts of the crime.
The "Guiding Opinions" also standardize and improve the mechanism for linking executions. The public security organs should promptly investigate the clues of the medical insurance fraud transferred by the administrative departments for medical security, and when necessary, they may request the relevant departments to assist and provide relevant evidence materials, and promptly file and investigate the suspected crimes.
According to reports, the drafting and formulation of the "Guiding Opinions" lasted more than two years, and the opinions of the courts and procuratorates were widely solicited, and the opinions of the National Health Commission and the National Health Insurance Bureau were solicited many times, and symposiums were organized to listen to the opinions and suggestions of representatives of pharmaceutical companies, medical institutions and pharmacies, and constantly revised and improved.
Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security.
Several issues concerning the handling of criminal cases of medical insurance fraud.
Guidance. In order to punish the crime of medical insurance fraud in accordance with law, to preserve the safety of medical security, and to preserve the lawful rights and interests of the people, on the basis of the "Criminal Law of the People's Republic of China", the "Criminal Procedure Law of the People's Republic of China" and other relevant provisions, the following opinions are hereby put forward on several issues concerning the handling of criminal cases of medical insurance fraud.
First, fully grasp the overall requirements.
1.Deeply understand the great significance of punishing the crime of medical insurance fraud in accordance with the law. Medical security is the people's "medical money" and "life-saving money", which is related to the vital interests of the people, the healthy and sustainable development of the medical security system, and the long-term peace and stability of the country. It is necessary to earnestly improve the political position, deeply understand the great significance of punishing the crime of medical insurance fraud in accordance with the law, continue to deepen the rectification of the problem of medical insurance fraud, severely punish the crime of medical insurance fraud in accordance with the law, earnestly maintain the safety of medical security, safeguard the legitimate rights and interests of the people's medical security, promote the healthy and sustainable development of the medical security system, and continuously improve the people's sense of gain, happiness and security.
2.Persist in handling cases strictly in accordance with law. Persist in taking the facts as the basis and the law as the criterion, adhere to the legal principles of the law, evidence-based judgments, and never guilty in doubt, and strictly follow the standards and requirements of evidence to comprehensively collect, fix, review, and identify evidence, to ensure that the facts of each criminal case of medical insurance fraud are clear, the evidence is credible and sufficient, the conviction is accurate, the sentencing is appropriate, and the procedures are lawful. Truly implement the criminal policy of blending leniency with severity and the system of leniency for those who admit guilt and accept punishment, with leniency being treated leniently, severity being treated as severe, and combining leniency with severity, and punishment appropriate to the crime, ensuring that the punishment is commensurate with the crime, and bringing about the unity of political, legal, and social effects.
3.Adhere to the division of labor and responsibility, mutual cooperation, and mutual restraint. Public security organs, people's procuratorates, and people's courts should give full play to the role of investigation, prosecution, and trial functions, strengthen coordination and cooperation, establish long-term effective working mechanisms, form a joint work force, and lawfully, promptly, and effectively punish the crime of medical insurance fraud. Persist in focusing on trial, strengthen awareness of evidence, procedures, and adjudication, give full play to the decisive role of court trials in ascertaining facts, identifying evidence, protecting litigation rights, and making fair judgments, effectively strengthening legal oversight, ensuring strict law enforcement, judicial fairness, and increasing judicial credibility.
II. Accurately identify the crime of medical insurance fraud.
4.The criminal cases of medical insurance fraud referred to in these Opinions refer to criminal cases in which deceptive means are used to defraud medical insurance**.
Medical insurance** includes basic medical insurance (including maternity insurance)**medical assistance**, subsidies for large medical expenses for employees, medical subsidies for civil servants, and serious illness insurance funds for residents.
5.Where designated medical institutions (medical institutions, drug business units) carry out any of the following acts for the purpose of illegal possession, defrauding medical security expenditures, the personnel who organize, plan, and implement them are to be convicted and punished as the crime of fraud in accordance with the provisions of article 266 of the Criminal Law; where other crimes are constituted at the same time, follow the provisions for the heavier punishment at trial and sentencing
1) Inducing or assisting others to impersonate or falsely seek medical treatment or purchase medicines, provide false supporting materials, or collude with others to issue false expense bills;
2) Forgery, alteration, concealment, alteration, or destruction of medical documents, medical certificates, accounting vouchers, electronic information, test reports, and other relevant materials;
3) Fictitious medical service items and false medical service fees;
4) Decomposition hospitalization, bed hanging hospitalization;
5) Duplicate charges, over-standard charges, and decomposition project charges;
6) Exchange of drugs, medical consumables, diagnosis and treatment items and service facilities;
7) Include the medical expenses that do not fall within the scope of medical security** payment into the settlement of medical insurance**;
8) Other acts of defrauding medical insurance expenditures.
Designated medical institutions shall recover medical security obtained by fraud through the conduct provided for in the preceding paragraph**.
State employees of designated medical establishments who take advantage of their positions to carry out the acts provided for in the first paragraph to defraud medical security are to be convicted and punished as ** crimes in accordance with the provisions of articles 382 and 383 of the Criminal Law.
6.Where the perpetrator commits any of the following acts for the purpose of illegal possession, defrauding medical security expenditures, it is to be convicted and punished as the crime of fraud in accordance with the provisions of Criminal Law article 266; where other crimes are constituted at the same time, follow the provisions for the heavier punishment at trial and sentencing
1) Forgery, alteration, concealment, alteration, or destruction of medical documents, medical certificates, accounting vouchers, electronic information, test reports, and other relevant materials;
2) Using other people's medical insurance certificates to seek medical treatment or purchase drugs in a false name;
3) Fictitious medical service items and false medical service fees;
4) Duplicate medical security benefits;
5) Taking advantage of the opportunity to enjoy medical security benefits to resell drugs, medical consumables, etc., and accept the return of cash, goods or other illegal benefits;
6) Other acts of defrauding medical insurance expenditures.
The personal account of the insured person shall pay for others the medical expenses incurred in the designated medical institutions and borne by the individual, as well as the expenses incurred by the individual in the purchase of drugs, medical devices and medical consumables in the designated retail pharmacies, which do not belong to the fraudulent medical treatment and drug purchase provided for in item (2) of the preceding paragraph.
7.Where the staff of the administrative department for medical security and the handling agency take advantage of their position to defraud the expenditure of medical security, they shall be convicted and punished as a crime in accordance with the provisions of articles 382 and 383 of the Criminal Law.
8.Where, for the purpose of fraudulently obtaining medical insurance**, the purchase and use of other people's medical security certificates (social security cards, etc.) constitutes the crime of buying and selling identity documents, the crime of using false identity documents, or the crime of fraud, it is to be convicted and punished with the heavier punishment.
Theft of other people's medical security certificates (social security cards, etc.) and theft of funds from personal medical insurance accounts is to be convicted and punished as the crime of theft in accordance with article 264 of the Criminal Law.
9.Where drugs are illegally purchased or sold clearly knowing that they are purchased through medical insurance fraud, they are to be convicted and punished for the crime of covering up or concealing criminal proceeds in accordance with the provisions of Criminal Law article 312 and relevant judicial interpretations; Instigating, instigating, or instigating others to use medical insurance to fraudulently purchase drugs, and then illegally purchasing or selling them, is to be convicted and punished as the crime of fraud in accordance with article 266 of the Criminal Law.
Whether or not the perpetrators of using medical insurance to fraudulently purchase drugs are pursued for criminal responsibility does not affect the conviction and punishment of the perpetrators of the illegal purchase and sale of relevant drugs.
The subjective knowledge provided for in the first paragraph shall be determined based on the comprehensive determination of the drug mark, acquisition channel, scale and drug traceability information. In any of the following circumstances, it may be determined that the actor has subjective knowledge, except where the actor can explain the legality of the drug or make a reasonable explanation:
1) The drug is obviously different from the market;
2) Those who have received criminal or administrative penalties for illegally purchasing or selling drugs purchased through medical insurance fraud;
3) Illegally purchasing and selling basic medical insurance drugs;
4) Long-term or multiple purchases and sales of basic medical insurance drugs to unspecified transaction partners;
5) Using the Internet, mail and other non-contact channels to purchase and sell basic medical insurance drugs for many times;
6) Other circumstances sufficient to determine the actor's subjective knowledge.
3. Punish the crime of medical insurance fraud in accordance with law.
10.Strictly punish the crime of medical insurance fraud in accordance with law, focusing on cracking down on behind-the-scenes organizers, professional insurance fraudsters, and so forth, and where there are lenient circumstances such as returning stolen goods and making restitution, admitting guilt and accepting punishment, the scope of leniency should also be strictly grasped.
In any of the following circumstances, a heavier punishment may be given:
1) Organizing or directing a criminal gang to defraud medical security**;
2) Those who have been criminally prosecuted for the crime of medical insurance fraud;
3) Refusal to return stolen goods, make restitution, or transfer property;
4) Causing other serious consequences or adverse social impacts.
11.In handling criminal cases of medical insurance fraud, it is necessary to simultaneously review clues on other crimes such as money laundering and infringement of citizens' personal information, so as to achieve punishment in accordance with the law throughout the chain. It is necessary to carry out the struggle to eliminate organized crime and evil in conjunction with normalization, discover and identify the underworld forces that may exist in medical insurance fraud gangs, dig deep into the corruption and "protective umbrella" behind the crime of medical insurance fraud, and resolutely punish them in accordance with law.
12.Whether or not to pursue criminal responsibility for the perpetrator of medical insurance fraud shall be determined in accordance with law based on the specific circumstances of the case, such as the amount and means of defrauding medical insurance**, admission of guilt and repentance, and return of stolen goods and restitution.
Where there are a large number of persons involved in the case, they should be treated and handled differently on the basis of the facts of the crime, the nature and circumstances of the crime, and the degree of harm to society, as well as their status, role, and specific conduct in the joint crime. First-time offenders and occasional offenders who are not deeply involved in the case are to be given a lenient punishment, and medical personnel and patients who admit guilt and accept punishment may be given lenient punishments, of which where the circumstances of the crime are minor, punishment may not be prosecuted or waived in accordance with law; Where the circumstances are obviously minor and the harm is not great, it is not to be handled as a crime.
13.The correct application of suspended sentences in accordance with law is to make a decision in accordance with law, based on comprehensive consideration of the circumstances of the crime, expressions of remorse, the risk of recidivism, and the impact of the announcement of a suspended sentence on the community in which they live. Suspended sentences are generally not applied to the ringleaders of criminal groups, professional insurance fraudsters, or those who have been criminally prosecuted for the crime of medical insurance fraud, who destroy, fabricate, or conceal evidence, and who refuse to return stolen goods or make restitution, or transfer property to evade responsibility. Depending on the circumstances of the crime, criminals who have been given a suspended sentence may be prohibited from engaging in specific activities related to medical care** during the probationary period of the suspended sentence.
14.Make full use of property penalties in accordance with the law, increase fines and confiscation of property, increase the cost of medical insurance fraud, and severely punish criminals economically. The amount of the fine should be determined by comprehensively considering circumstances such as the amount of the crime, the return of stolen goods, and the admission of guilt and acceptance of punishment.
IV. Truly strengthen the collection, review, and judgment of evidence.
15.In criminal cases of medical insurance fraud, the chain is long, the concealment is deep, and it is difficult to collect evidence, and the public security organs should strengthen the investigation and collection of evidence, collecting and fixing fixed evidence around the facts of the crime of medical insurance fraud and the sentencing circumstances, especially focusing on the collection and fixation of original evidence materials such as prescriptions and medical records, as well as core evidence materials proving the fact of forgery and fraud, to thoroughly ascertain the facts of the crime and transfer it for prosecution in accordance with law. When necessary, the opinions of the people's procuratorate may be heard in cases that are major, difficult, complex, and have a large social impact, or have a high degree of concern.
16.The people's procuratorates should perform their duties of legal supervision in accordance with law, strengthen the establishment of an accusation system with evidence as the core, strengthen efforts such as early intervention, evidence review, and case filing supervision in criminal cases of medical insurance fraud, and actively guide public security organs to carry out investigative activities and improve the evidence system.
17.People's courts should strengthen the review and judgment of evidence in criminal cases of medical insurance fraud, comprehensively use evidence, and conduct reviews and determinations around the facts and circumstances related to conviction and sentencing, to ensure that the facts of the case are clear and the evidence is credible and sufficient. Where it is found necessary to supplement evidence, it shall be recommended that the people's procuratorate supplement the investigation in accordance with law.
18.Evidence materials such as physical evidence, documentary evidence, audio-visual materials, and electronic data collected by the administrative departments for medical security in the course of supervision, inspection, and investigation may be used as the basis for a verdict if they are verified to be true by the court, and the collection procedures comply with the provisions of relevant laws and administrative regulations.
19.In handling criminal cases of medical insurance fraud, where it is truly impossible to collect witness testimony one by one due to objective conditions such as the large number of witnesses, the amount of fraud and other criminal facts may be comprehensively determined by combining the witness testimony that has already been collected, as well as evidence such as bank account transaction records, third-party payment and settlement vouchers, account transaction records, audit reports, medical insurance information system data, and electronic data, that have been verified to be true.
20.Public security organs, people's procuratorates, and people's courts shall comprehensively collect and review evidence proving the property, nature, use, ownership, and value of assets involved in the case that have been sealed, seized, or frozen in accordance with law, and handle it in accordance with law on the basis of the ascertained facts. and where it is found to be truly unrelated to the case, it shall be returned.
Public security organs and people's procuratorates shall review and screen assets involved in the case. When transferring for prosecution or initiating a public prosecution, opinions on the disposition of assets involved in the case shall be submitted.
21.All property obtained by the perpetrator of the crime of medical insurance fraud shall be recovered or ordered to be returned in accordance with law. Where there is credible evidence proving the existence of property that should be recovered in accordance with law, but the whereabouts cannot be ascertained, or the value is lost, or it is mixed with other lawful assets and is inseparable, the equivalent value of the property or the equivalent part of the mixed property may be recovered. The amount to be recovered for assets of equivalent value is limited to the amount of unlawful gains that shall be recovered as determined in accordance with law, and the portion that has already been recovered or restituted shall be deducted.
Evidence proving the circumstances of the preceding paragraph shall be promptly collected.
22.Public security organs, people's procuratorates, and people's courts should carry out the recovery of stolen goods and losses throughout the entire process and all links of handling cases, and make every effort to recover stolen goods and losses, so that they are fully pursued. In the course of enforcing assets involved in the case, the people's courts, people's procuratorates, and relevant functional departments shall cooperate, truly perform their obligations to cooperate, and comprehensively use a variety of methods to do a good job of efforts such as the removal and transportation of assets involved in the case, the realization of assets, the collection of funds, and the return of assets, to minimize losses in medical security and preserve the interests of the people to the greatest extent.
5. Establish and improve coordination and cooperation mechanisms.
23.Public security organs and people's procuratorates shall promptly submit opinions on issues such as prosecution standards and evidence fixation if the administrative department for medical security finds that the case is major, difficult, and complex in the course of investigating medical insurance fraud or administrative law enforcement.
The public security organs should promptly investigate the clues of the medical insurance fraud transferred by the administrative departments for medical security, and when necessary, they may request the relevant departments to assist and provide relevant evidence materials, and promptly file and investigate the suspected crimes. The administrative departments for medical security or the relevant administrative departments and medical institutions shall actively cooperate with the case-handling organs in collecting relevant evidence, and do a good job of fixing and storing the evidence.
Where public security organs, people's procuratorates, and people's courts need to give administrative punishments, governmental sanctions, or other sanctions to perpetrators of medical insurance fraud who do not constitute a crime, are not prosecuted in accordance with law, or are exempted from criminal punishment, they shall be transferred to the administrative department for medical security and other relevant organs for handling in accordance with law.
24.Public security organs, people's procuratorates, and people's courts should strengthen coordination and cooperation with the administrative departments for medical security, complete working mechanisms such as for preliminary investigation, filing and investigation, review for prosecution, and trial and enforcement of criminal cases of medical insurance fraud, improve mechanisms for the discovery, verification, transfer, handling, and feedback of leads, strengthen the analysis and assessment of leads on the crime of medical insurance fraud, and promptly discover, effectively prevent, and punish crimes. The public security organs and the administrative departments of medical security should accelerate the promotion of information sharing, build a real-time analysis and early warning monitoring model, and strive to "detect and crack down on medical insurance fraud as soon as possible" to minimize losses.
The public security organs, people's procuratorates, and people's courts shall promptly report the results of the handling of cases of medical insurance fraud and effective documents to the administrative departments for medical security.
25.When handling criminal cases of medical insurance fraud, public security organs, people's procuratorates, and people's courts may consult with the administrative department for medical security or the relevant administrative department to appoint professionals to cooperate in carrying out the work, assist in reviewing and copying relevant professional materials or calculate the amount of medical security losses, and issue determination opinions on the professional issues involved in the case. Matters that need to be handled administratively shall be promptly transferred to the administrative department for medical security or the relevant administrative department for handling in accordance with law.
26.Public security organs, people's procuratorates, and people's courts should actively perform their duties, further extend their case-handling functions, release typical cases in a timely manner based on the circumstances, carry out the use of cases to explain the law, strengthen publicity and education on the rule of law, promote the general public to know and abide by the law, and jointly preserve the normal operation of medical security and medical and health order. Combined with the handling of cases to discover problems in the use and supervision of medical security, send reminder letters, procuratorial suggestions, and judicial recommendations to relevant departments, and pay attention to tracking and asking for results, establish and improve a long-term mechanism for preventing medical insurance fraud and crimes, and completely eradicate the breeding ground for medical insurance fraud and crimes.
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* |Public security.
Original title: "Two High Schools and One Article" jointly issued! 》