18 U.S.C. § 1035: Health Care False Statement Charges, Materiality, and Defense
Why 18 U.S.C. § 1035 Is a Core Tool in Federal Health Care Fraud Cases
The federal health care false statement statute is short, but it carries weight. 18 U.S.C. § 1035 makes it a crime to knowingly and willfully make a materially false statement in any matter involving a health care benefit program. The Department of Justice charges it alongside health care fraud, kickback, and conspiracy counts. It also reaches conduct that the larger fraud statutes can miss, including false statements on the enrollment forms that providers and suppliers file to bill Medicare in the first place.
The Eleventh Circuit's decision in United States v. Alexander, No. 23-11322 (11th Cir. Mar. 24, 2026), applies § 1035 to a Medicare enrollment fraud. The court upheld a surgeon's conviction for a false ownership statement on a Medicare enrollment form, even though the form was filed only to report a change of business hours. It explained how materiality is proven, how aiding and abetting attaches, and where the government's proof for a conviction can still fall short of the proof required for restitution. The opinion separates two standards that are easy to blur.
Enrollment fraud and durable medical equipment remain enforcement priorities. The 2025 National Health Care Fraud Takedown charged 324 defendants across 50 federal districts. The DOJ Fraud Section's Health Care Fraud Unit and its data analytics programs flag billing anomalies and ownership structures that do not match the entities behind them. A false statement on a CMS Form 855S is exactly the kind of conduct those programs surface.
What Happened in United States v. Alexander
Lawrence Alexander is an orthopedic surgeon. In 2016 he and a medical supply businessman, Jeremy Waxman, created a durable medical equipment company called Silent Hill Bracing and Orthopedic Supplies. Waxman ran the day-to-day business. Alexander put in the money. The company bought doctor's orders for orthopedic braces and billed Medicare for them.
The owner of record was not Alexander. It was his mother, Susan Alexander. She had no role in the business and no ownership interest. She was the only person identified on the company's Medicare application as the DME provider. Alexander supplied his mother's identifying information, and Waxman signed her name with Alexander's permission.
The charged false statement came from a CMS Form 855S submitted in January 2019. That form was filed to tell Medicare that Silent Hill had changed its hours of operation. It also certified that Susan Alexander was the sole owner and managing employee of the company. That certification was false. Silent Hill stopped operating in April 2019 after Medicare suspected fraud.
A grand jury indicted Alexander on one count of conspiracy under 18 U.S.C. § 371 and one count of a false statement under § 1035. The jury acquitted him of the conspiracy. It convicted him of the false statement. The court sentenced him to thirty-three months in prison, ordered $315,704.52 in restitution, and ordered forfeiture of $125,000.
Alexander raised seven issues on appeal. The Eleventh Circuit affirmed on six of them, including venue, the sufficiency of the indictment, materiality, aiding and abetting, the jury instructions, and forfeiture. It vacated the restitution order and remanded. The conviction stood. The restitution order did not.
The Elements of a § 1035 Offense As Charged
Section 1035 has two operative subsections. Subsection (a)(1) covers concealing or covering up a material fact. Subsection (a)(2) covers affirmative false statements and the use of false documents. Alexander was charged under (a)(2). To convict under that subsection, the government had to prove four things beyond a reasonable doubt.
The court also rejected a related argument. Alexander argued the false ownership statement could not support liability because Medicare did not require it on a change-of-hours form. The court disagreed. Liability under § 1035 does not depend on whether a statement was required. It depends on whether the defendant knowingly and willfully made a false statement that was material. A voluntary false entry counts. That holding widens the practical reach of the statute. A provider who inserts a false statement the form did not call for is still exposed.
The Motion to Dismiss the Indictment
Alexander moved before trial to dismiss the § 1035 count. He argued the January 2019 form was a notice of changed hours, not a billing or services submission, so it fell outside the statute. The court held the indictment was sufficient. The standard is whether the indictment sufficiently alleges an offense, reviewed de novo, with the denial of the motion reviewed for abuse of discretion. United States v. Gbenedio, 95 F.4th 1319 (11th Cir. 2024). An indictment that tracks the statutory language is sufficient if it also states the facts and circumstances that give the accused notice of the offense. United States v. Jordan, 582 F.3d 1239 (11th Cir. 2009). It need not allege in detail the factual proof the government will use at trial. United States v. Sharpe, 438 F.3d 1257 (11th Cir. 2006). Count 19 tracked § 1035(a)(2) and identified the specific false statement, the certification of his mother as sole owner and managing employee. The indictment also alleged the facts of enrollment, the disclosure obligations, and how an approved application produces a provider number that enables billing. That was facially sufficient.
The Materiality Analysis
Materiality is the element most often litigated under § 1035, and it was the core of Alexander's appeal. A false statement is material if it has a natural tendency to influence, or is capable of influencing, the decision of the body to which it was addressed. The Supreme Court set that standard in Kungys v. United States, 485 U.S. 759 (1988), and in United States v. Gaudin, 515 U.S. 506 (1995). Gaudin frames materiality as two questions. What statement was made? What decision was the agency trying to make?
The key point for defendants is what the government does not have to prove. It does not have to show that the decisionmaker actually relied on the false statement. The Eleventh Circuit reaffirmed that rule in United States v. Henderson, 893 F.3d 1338 (11th Cir. 2018), which drew on United States v. Clay, 832 F.3d 1259 (11th Cir. 2016), for the point that the test is not whether the agency was actually misled. The test is capability of influence, not actual influence. A statement can be material even if the decisionmaker knew or should have known it was false. Capability is enough.
The test is not whether the agency was actually misled. The test is whether the false statement was capable of influencing the decision.
Standard drawn from Kungys, Gaudin, and HendersonThe criminal false statement was the ownership certification, not the hours. The form listed Susan Alexander as the sole owner and managing employee, and that was false. The change of hours was only the reason the form went to Medicare. The court never treated the hours as the false statement.
Alexander tried to use the change-of-hours purpose to defeat materiality. He argued that his mother's ownership stake could not be material because the form was not being used to apply for enrollment, so the false ownership could affect only a decision about new hours, not a decision to approve or deny enrollment. The court rejected that framing. A Medicare expert, Steven Quindoza, testified that enrollment is an ongoing relationship, not a one-time event. The 855S form itself states that suppliers must disclose anyone with an ownership, financial, or control interest in order to obtain and retain billing privileges. False ownership information can lead to termination of enrollment, recovery of past payments, and referral for prosecution. That risk attaches to every 855S submission, not just the first one. So even though the January 2019 form reported only a change of hours, the false ownership statement was capable of influencing Medicare's ongoing decision about whether to keep paying Silent Hill. That satisfied materiality.
The Government Built Materiality on an Expert Witness
The government did not establish materiality with a Medicare official who received the form, or with a document showing the agency acted on it. It established materiality through an expert. Quindoza supplied the testimony that ownership disclosure governs a supplier's billing privileges and that a false disclosure carries consequences with every 855S filing. That testimony carried the element. It converted a change-of-hours form into a statement capable of influencing Medicare's decision to keep paying Silent Hill.
When an element rests on expert opinion rather than direct evidence, the cross-examination of that expert is where the element is contested. The sufficiency standard on appeal leaves little room. A court reviews the denial of a judgment of acquittal de novo, views the evidence in the light most favorable to the government, and will not disturb a verdict if any reasonable construction of the evidence supports it. United States v. Morley, 99 F.4th 1328 (11th Cir. 2024); United States v. Smith, 22 F.4th 1236 (11th Cir. 2022). That deference is why the materiality fight is decided at trial, in front of the jury, not afterward on a sufficiency motion.
The expert's testimony was open to challenge. The basis for the ongoing-conversation characterization, whether a change-of-hours submission actually prompted any ownership review, and the absence of any evidence that Medicare acted on this particular form were all available lines of cross-examination. The restitution reversal proves the point. The same expert testimony that proved capability of influence, enough for the conviction, did not prove that Medicare relied on or acted on the form, which is what the restitution order required. Cross-examination and the trial record are where that gap is built.
The Jury Instruction on Materiality
Alexander also challenged the materiality jury instruction. That challenge failed on invited error, not on the substance of the materiality standard.
At trial, both sides proposed materiality instructions. Alexander's proposed instruction added a sentence tailoring the materiality standard to the 855S form, stating that the false statement had to be capable of influencing the decision to approve or deny enrollment as a Medicare provider. The district court adopted Alexander's version almost word for word. The only difference between Alexander's proposed instruction and the final charge was a line break splitting it into two paragraphs. The substance was identical.
A party that expressly accepts a jury instruction invites the error and waives the right to challenge it on appeal. United States v. Silvestri, 409 F.3d 1311 (11th Cir. 2005). The court called Alexander's challenge a textbook case of invited error. United States v. Maradiaga, 987 F.3d 1315 (11th Cir. 2021). It declined to review the challenge at all. The instruction a defendant submits can become the instruction that binds him on appeal. Tailoring an instruction to the defense theory carries a risk when the theory does not match the evidence.
The deliberate ignorance instruction failed for two independent reasons. First, Alexander did not properly raise the challenge in his opening brief. He tried to adopt his co-defendant Zusmer's argument by footnote, but Zusmer was differently situated. Zusmer's complaint was that the instruction clashed with the government's strong evidence of his actual knowledge of the conspiracy. Alexander claimed the opposite, that he was uninvolved in the filing and the day-to-day business, so Zusmer's argument did not fit and the adoption failed. Second, Alexander raised the argument properly only in his reply brief, which waived it. Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839 (11th Cir. 2008). The court added that even on the merits the instruction matched the Eleventh Circuit pattern instruction, and that the record supported giving it, including evidence that Waxman ran the business and gave Alexander periodic updates and profit disbursements.
Aiding and Abetting Under 18 U.S.C. § 2
Alexander did not fill in the form. He did not sign it. He did not file it. The government still convicted him by proving he aided and abetted the false statement under 18 U.S.C. § 2. Aiding and abetting is not a separate crime. It is a theory of liability that makes a person who helps commit an offense punishable as a principal.
Alexander's challenge focused on intent. He argued the government never showed he knew of the criminal objective it attributed to Waxman. He pointed out that Waxman did not even recall the January 2019 form and testified only about the routine process of filing forms for Silent Hill. The court rejected the argument. Intent does not require direct proof, and the circumstantial evidence here was enough.
The Eleventh Circuit applies a three-part test, drawn from United States v. Margarita Garcia, 906 F.3d 1255 (11th Cir. 2018).
Two features of the doctrine are worth noting. First, aiding and abetting does not have to be charged in the indictment. As long as the evidence supports it and the jury is instructed on it, a defendant can be convicted on that theory. The Eleventh Circuit confirmed this in United States v. Seabrooks, 839 F.3d 1326 (11th Cir. 2016). Second, the intent element requires active participation with full knowledge of the circumstances constituting the offense. The Supreme Court set that standard in Rosemond v. United States, 572 U.S. 65 (2014). Knowledge and intent can be proven entirely through circumstantial evidence. United States v. Beaufils, 160 F.4th 1147 (11th Cir. 2025). A defendant rarely announces intent, so the government builds it from documents, transactions, and conduct.
Where the Government's Proof Fell Short: Restitution
Alexander won on restitution. The proof that supports a § 1035 conviction is not the proof that supports a restitution order.
The Mandatory Victims Restitution Act requires a court to order restitution for the actual loss directly and proximately caused by the offense of conviction. See 18 U.S.C. § 3663A. The victim is a person directly and proximately harmed by the offense, and a dispute over the amount is resolved by a preponderance of the evidence. 18 U.S.C. §§ 3663A(a)(2), 3664(e). Restitution exists to make a victim whole, not to provide a windfall, and it is not designed to punish. United States v. Martin, 803 F.3d 581 (11th Cir. 2015). The amount must rest on the loss the defendant's conduct actually caused. United States v. Huff, 609 F.3d 1240 (11th Cir. 2010). That requires proof that the false statement actually and proximately caused the loss.
This is where the two standards split. To convict under § 1035, the government had to show only that the false statement was capable of influencing Medicare. It did not have to show reliance. To obtain restitution, the government had to show that Medicare actually relied on the false statement and that the reliance caused the payments. The district court treated reliance as something the jury had already decided. The Eleventh Circuit corrected that. The jury was asked only whether the statement was capable of influence. It was never asked about reliance. Evidence that supports a § 1035 conviction is not necessarily enough to support an order of restitution.
The acquittal on the conspiracy count narrowed the analysis. Restitution cannot reach beyond the offense of conviction. See Hughey v. United States, 495 U.S. 411 (1990). The district court had relied on United States v. Collins, 854 F.3d 1324 (11th Cir. 2017), but the defendant there was convicted of a conspiracy, which let restitution reach the whole scheme. Alexander was acquitted of the conspiracy. He was convicted of one false statement. The government conceded there is no Eleventh Circuit case awarding restitution for a § 1035 conviction standing alone. So the court had to isolate the actual loss caused by the single false statement made in January 2019, not the loss from the broader scheme the jury rejected.
On the record, the government could not show actual reliance. The parties stipulated that the government had not produced a letter of receipt or processing for the January 2019 form, and that it offered no evidence of when the changed information was reviewed by the Medicare contractor. Alexander conceded the form was eventually located in Medicare's files and produced in litigation, but the court held that receipt of a document is not reliance on it. The government argued that Medicare likely would not have let Silent Hill keep billing and might have reversed past claims. The chance of reliance is not reliance. The court flagged a second defect as well. The district court did not account for any value the billed services may have provided to Medicare, which United States v. Young, 108 F.4th 1307 (11th Cir. 2024), requires. The government must establish by a preponderance that the victim relied on the fraudulent information. United States v. Stein, 846 F.3d 1135 (11th Cir. 2017). A factual finding is clearly erroneous when the record lacks substantial evidence to support it. United States v. Robertson, 493 F.3d 1322 (11th Cir. 2007). Without any causal link between the form and the later claims, the government failed to prove the loss Alexander's conduct actually caused. The finding was clearly erroneous. The court vacated the restitution award and remanded.
In a § 1035 case, the strongest challenge to a restitution order is often the causation gap between the statement and the loss, not the conviction. Proof that a statement was capable of influencing the agency does not prove that it caused the payments.
Conviction under § 1035 requires proof that the false statement was capable of influencing the decisionmaker. Restitution under the MVRA requires proof that the false statement actually and proximately caused the loss. The same evidence does not satisfy both standards.
How § 1035 Is Charged Across Health Care Fraud Cases
Alexander was a durable medical equipment case, but § 1035 is not limited to DME. The statute reaches any materially false statement in a matter involving a health care benefit program. That language fits a wide range of service lines, because each one runs on certifications, enrollment forms, plans of care, and physician attestations that the government can later test for falsity. Prosecutors charge § 1035 against physicians and other medical professionals across the field, often alongside health care fraud under 18 U.S.C. § 1347, Anti-Kickback Statute counts, and conspiracy.
The recurring pattern is a document that authorizes or supports payment. In a DME fraud case, it is the enrollment form or the certificate of medical necessity, the same category of document at issue in Alexander. In a home health fraud case, it is the face-to-face encounter record or the certification that a patient is homebound and needs skilled care. In a hospice fraud case, it is the physician certification of a terminal prognosis with a life expectancy of six months or less. In a wound care fraud case, it is the documentation of wound measurements, debridement, or skin-substitute graft application that supports the billed service. A false statement on any of these can carry the same § 1035 exposure the surgeon faced in Alexander.
Armstrong & Bradylyons PLLC defends physicians, owners, and executives in these cases nationwide. Based in Washington, D.C., the firm is built to practice in every federal district court in the country, the same courts where its attorneys built and tried health care fraud cases at the DOJ Fraud Section. DOJ's Health Care Fraud Strike Force operates in districts across the country, including the Southern District of Florida, the Eastern District of Michigan, the Southern District of Texas, and the Central District of California, and health care fraud prosecutions also originate from U.S. Attorney's Offices well beyond the Strike Force map. The firm represents individuals wherever the government brings § 1035 and related health care fraud charges.
What Alexander Means for Health Care Providers and Executives
The decision consolidates several rules that govern § 1035 prosecutions in the Eleventh Circuit and persuade courts elsewhere. False statements on enrollment forms are within the statute. A statement can be material even on a form filed for an unrelated purpose, because enrollment is an ongoing relationship. A statement that the form did not require can still support liability. A person who never touched the form can be convicted through aiding and abetting. And a conviction does not automatically justify a restitution order, because restitution demands proof of actual causation.
Defense work in these cases turns on those distinctions. The willfulness element is tested through the defendant's contemporaneous communications and the proof of who knew what. The materiality element is tested against the specific agency decision the statement could influence. The aiding and abetting theory is tested through the strength of the circumstantial inference of intent. The financial exposure is tested against the government's causation proof. Each is a separate question. In Alexander, the defendant lost on the conviction issues and still prevailed on restitution.
Scott Armstrong served as a leading trial attorney in the Healthcare Fraud Unit of the DOJ Fraud Section and later as an Assistant Chief in the Market Integrity and Major Frauds Unit. He has tried sixteen complex federal cases, including nine health care fraud jury trials, and served as lead counsel in DOJ health care fraud prosecutions involving more than $600 million in alleged false claims. He also led the Fraud Section's first use of data analytics to convict a physician.
Drew Bradylyons served as an Assistant Chief of the Healthcare Fraud Unit and supervised its South Florida Strike Force, the busiest health care fraud docket in the country. He investigated and supervised cases involving more than $1 billion in fraudulent claims to Medicare, Medicaid, and TRICARE. He later served as Chief of the Financial Crimes and Public Corruption Unit at the U.S. Attorney's Office for the Eastern District of Virginia. Together with Special Counsel Andrea Savdie, the firm's attorneys have tried 25 federal jury trials, including 17 in health care fraud cases involving over $2.8 billion in alleged false claims.
Frequently Asked Questions
What is 18 U.S.C. § 1035?
Section 1035 is the federal health care false statement statute. It is codified at 18 U.S.C. § 1035 and was enacted as part of HIPAA in 1996. It makes it a crime to knowingly and willfully, in any matter involving a health care benefit program, falsify or conceal a material fact, or make a materially false statement, or use a materially false document, in connection with the delivery of or payment for health care benefits, items, or services.
The statute reaches both private and federal health care benefit programs through the broad definition of that term in 18 U.S.C. § 24(b). Each violation carries up to five years in prison, a fine, or both. Prosecutors frequently charge § 1035 alongside health care fraud under 18 U.S.C. § 1347, the Anti-Kickback Statute, and conspiracy counts. It also stands on its own where the false statement appears on enrollment, certification, or cost-report documents rather than on a claim.
What are the elements of a § 1035 false statement offense?
Under § 1035(a)(2), the government must prove four elements beyond a reasonable doubt. First, the conduct occurred in a matter involving a health care benefit program. Second, the defendant acted knowingly and willfully. Third, the defendant made a materially false statement or used a materially false document knowing it contained a false entry. Fourth, the statement or document was made in connection with the delivery of or payment for health care benefits, items, or services.
In United States v. Alexander, the false statement was a certification on a CMS Form 855S that the defendant's mother was the sole owner and managing employee of a durable medical equipment company. The Eleventh Circuit also held that liability does not depend on whether the form required the statement. A voluntary false entry satisfies the statute as long as it was knowing, willful, and material. The willfulness element can be supplied through an aiding and abetting theory under 18 U.S.C. § 2.
Does § 1035 require proof that Medicare relied on the false statement?
No. A conviction under § 1035 does not require proof of actual reliance. The materiality element asks whether the statement had a natural tendency to influence, or was capable of influencing, the decisionmaker. It does not ask whether the decisionmaker was actually misled. The Eleventh Circuit reaffirmed this in United States v. Henderson, 893 F.3d 1338 (11th Cir. 2018), relying on Kungys v. United States, 485 U.S. 759 (1988).
The point matters because the standard for a restitution order is different. Restitution under the Mandatory Victims Restitution Act requires proof that the false statement actually and proximately caused the loss. In Alexander, the government proved the statement was capable of influencing Medicare, which supported the conviction, but could not prove Medicare actually relied on the January 2019 form, which is why the restitution order was vacated. Capability supports the crime. Causation supports the dollar figure.
What makes a false statement "material" under § 1035?
A false statement is material if it has a natural tendency to influence, or is capable of influencing, the decision of the body to which it was addressed. The Supreme Court set the framework in United States v. Gaudin, 515 U.S. 506 (1995), which asks two questions: what statement was made, and what decision was the agency trying to make.
In Alexander, the defendant argued that a false ownership statement could not be material on a form filed only to change business hours. The Eleventh Circuit rejected that argument. Expert testimony established that Medicare enrollment is an ongoing relationship, that ownership disclosure is required to obtain and retain billing privileges, and that false ownership information can lead to termination and recovery of payments with every CMS Form 855S submission. Because the false statement could influence Medicare's ongoing decision to keep paying the company, it was material even though the form addressed an unrelated subject. Materiality is measured against the full range of decisions the statement could affect.
Can a person be convicted under § 1035 for a statement Medicare did not require?
Yes. In United States v. Alexander, the Eleventh Circuit held that liability under § 1035 does not depend on whether a statement was required. It depends on whether the defendant knowingly and willfully made a false statement that was material. The court explained that liability attaches even when the false statement was voluntarily inserted into the form.
This broadens the practical reach of the statute. A provider who adds a false entry that the form did not call for cannot avoid liability by arguing the entry was unnecessary. The relevant questions remain whether the entry was false, whether the defendant acted knowingly and willfully, and whether the entry was capable of influencing the agency. The requirement or non-requirement of the field is not an element.
What is the difference between materiality for conviction and causation for restitution?
These are two separate standards with two separate burdens. For a § 1035 conviction, the government must prove the false statement was capable of influencing the decisionmaker. Actual reliance is not required. For a restitution order under the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, the government must prove the false statement actually and proximately caused the victim's loss.
In Alexander, the district court treated the jury's materiality finding as if it resolved reliance. The Eleventh Circuit corrected the error. The jury was asked only about capability of influence, never about reliance. The parties had stipulated that the government produced no letter of receipt or processing for the January 2019 form and offered no evidence of when the changed information was reviewed. Without proof that Medicare reviewed or acted on the form, there was no causal link between the statement and the later claims. The restitution finding was clearly erroneous and was vacated. The case illustrates that a valid conviction does not automatically support a restitution award.
What are the elements of aiding and abetting under 18 U.S.C. § 2?
Aiding and abetting under 18 U.S.C. § 2 is a theory of liability, not a separate offense. It makes a person who helps commit a crime punishable as a principal. The Eleventh Circuit applies a three-part test from United States v. Margarita Garcia, 906 F.3d 1255 (11th Cir. 2018): the substantive offense was committed by someone, the defendant committed an act that contributed to and furthered the offense, and the defendant intended to aid in its commission.
The intent element requires active participation with full knowledge of the circumstances constituting the offense, as the Supreme Court held in Rosemond v. United States, 572 U.S. 65 (2014). Knowledge and intent can be proven entirely through circumstantial evidence. Aiding and abetting also does not have to be charged in the indictment. Under United States v. Seabrooks, 839 F.3d 1326 (11th Cir. 2016), a defendant can be convicted on the theory as long as the evidence supports it and the jury is instructed on it.
How was aiding and abetting proven in United States v. Alexander?
The defendant never personally completed, signed, or filed the false form. The government still established each element of aiding and abetting. The false statement was submitted by the company under the day-to-day supervision of the defendant's business partner, which satisfied the requirement that the offense be committed by someone.
The defendant's contribution was the use of his mother as the false owner. It was his idea, and he obtained and supplied her fingerprints, Social Security number, personal information, and signature. That conduct made the false certification possible. On intent, the partner testified that he never signed the mother's name without the defendant's permission and that the defendant saw and consented to each form before submission. Because the January 2019 form bore her signature, the jury could reasonably infer the defendant consented to it. The Eleventh Circuit held that this circumstantial proof satisfied the three-part test and supported the verdict.
What is invited error, and how did it affect the jury instruction challenge?
Invited error is the rule that a party cannot complain on appeal about an error it caused. When a party proposes a jury instruction and the court gives it, the party generally cannot later argue the instruction was wrong. The conduct waives the right to challenge it.
In Alexander, the defendant proposed a materiality instruction that tailored the standard to the CMS Form 855S. The district court adopted his version almost word for word. The only difference between his proposed instruction and the final charge was a line break. The Eleventh Circuit called it a textbook case of invited error, citing United States v. Maradiaga, 987 F.3d 1315 (11th Cir. 2021), and declined to review the challenge. The defendant's deliberate ignorance argument was also lost, because he tried to adopt a co-defendant's position by footnote and raised the issue properly only in his reply brief, which waived it. The decision is a reminder that the instruction a defense proposes can become the instruction it is bound by.
What is a CMS Form 855S, and why does ownership disclosure matter?
The CMS Form 855S is the Medicare enrollment application for durable medical equipment, prosthetics, orthotics, and supplies suppliers. Suppliers file it to enroll, to revalidate enrollment, and to report changes to their enrollment information. Details are published by the Centers for Medicare & Medicaid Services. Approval of the form produces the billing number that lets the supplier submit claims to Medicare.
Ownership disclosure is central to the form. A supplier must disclose any person or entity with an ownership, financial, or control interest in order to obtain and retain billing privileges. The form warns that deliberately furnishing false information can expose a person to criminal penalties under § 1035. In Alexander, the false certification of ownership on this form was the basis for the conviction. Because the disclosure goes to whether Medicare will establish or maintain a billing relationship, a false ownership statement is treated as capable of influencing the agency.
What are the penalties for a § 1035 conviction?
Each § 1035 violation carries a maximum of five years in prison, a fine, or both. Sentences are calculated under the Federal Sentencing Guidelines, which set the offense level largely by reference to financial loss, so the government's loss theory drives the exposure. A conviction can also support an order of forfeiture of proceeds traceable to the offense and an order of restitution to the victim.
Restitution and forfeiture are governed by different standards than the conviction. Forfeiture under 18 U.S.C. § 982(a)(7) requires proof by a preponderance of the evidence that the property is traceable to the offense. Restitution under the Mandatory Victims Restitution Act requires proof that the offense actually and proximately caused the victim's loss. In Alexander, the forfeiture order was affirmed while the restitution order was vacated, which shows that the two financial consequences can be analyzed and resolved separately even on the same record.
Why does trial experience matter in § 1035 health care false statement cases?
Section 1035 cases are won and lost on distinctions that play out at trial. Willfulness is tested through cross-examination and the defendant's contemporaneous records. Materiality is tested against the specific agency decision the statement could influence. Aiding and abetting depends on the strength of a circumstantial inference of intent. Financial exposure depends on the government's causation proof for restitution. Each is a separate issue with its own burden, and Alexander shows a defendant can prevail on one while losing others.
Scott Armstrong served as a leading trial attorney in the DOJ Fraud Section's Healthcare Fraud Unit and tried nine health care fraud jury trials among sixteen complex federal trials. Drew Bradylyons served as an Assistant Chief of the Healthcare Fraud Unit and supervised its South Florida Strike Force. Together with Special Counsel Andrea Savdie, the firm's attorneys have tried 25 federal jury trials, 17 of them health care fraud cases involving more than $2.8 billion in alleged false claims. Having built these cases inside the government, they know where the proof on materiality, intent, and causation is strong and where it is vulnerable.
Facing a Federal Health Care False Statement Investigation?
Armstrong & Bradylyons PLLC defends physicians, suppliers, executives, and corporate entities in federal § 1035 and health care fraud investigations and prosecutions nationwide. Scott Armstrong served as a leading trial attorney in DOJ's Healthcare Fraud Unit. Drew Bradylyons served as Assistant Chief of the Healthcare Fraud Unit. They built, tried, and supervised these cases at the DOJ Fraud Section, and now apply that experience to health care fraud defense for clients facing federal investigation and indictment.
