SCOPE OF PRESENTATION Introduction The need to acknowledge different jurisdictions Various faces of healthcare crimes Law of evidence challenges Forms of economic crimes in the healthcare environment The prevention of Organised Crime Act, 121 of 1998 Latest Constitutional viewpoint The importance to keep up to date with new technology Six steps in the use of new technology Conclusions INTRODUCTION Title of address… “Prevention is better than cure” Good corporate governance, risk management, controls, systems and other preventative measures are important, but… Good (successful) investigation and prosecution that lead to convictions and serious sentences – the best prevention The war against economic crime is a team effort and rely on partnerships To sensitise different role players to each other’s responsibilities is of the utmost importance Sharing of knowledge and expertise leads to success Good law means nothing if the implementation and application is fails THE NEED TO ACKNOWLEDGE DIFFERENT JURISDICTIONS Benefits of a global approach when combatting crime… S 39 of the RSA Constitution When interpreting the Bill of Rights, a court, tribunal or forum- (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. Be sensitive to differences Criminal Law – “Fraud” Law of Evidence – “Admissibility issues” Constitution – S 8 (2) – “Application” VARIOUS FACES OF HEALTHCARE CRIMES Not a separate recognised crime Overlaps with common law crimes Theft Fraud (various forms) Forgery and uttering Overlaps with statutory offences Corruption Organised crimes Money laundering Racketeering LAW OF EVIDENCE CHALLENGES The South African Law of Evidence is not codified Two sets of rules Statutory Hearsay Documentary evidence Opinion evidence ECT Act Entry search and seizure Interception and monitoring Common law No jury Economic crime situation Influence of the Constitution FORMS OF ECONOMIC CRIMES IN THE HEALTHCARE ENVIRONMENT Provider health care crimes billing for services not actually performed falsify a patient’s diagnosis to justify unnecessary tests misrepresenting procedures performed to obtain payment for non-covered services (cosmetic surgery) upcoding – billing for a more costly service accepting kick-backs for patient referrals unbundling – billing each stage of a procedure as if it were a separate procedure FORMS OF ECONOMIC CRIMES IN THE HEALTHCARE ENVIRONMENT Consumer and syndicate health care crimes claiming for services or medications not received forging or altering bills or receipts using someone else’s coverage (“identity fraud”) theft of medical equipment and claiming the loss from insurance companies syndicates gunning for money paid out by hospital cash plans products are sold by insurance companies with the intention to help cover shortfalls the “patient” later splits the paid out sum with their partners in crime RECENT EXAMPLES OF HEALTHCARE RELATED CRIMES 20 people arrested in February – largest health care fraud takedown in the history of the District of Columbia (Medicaid fraud) Investigation uncovered numerous, separate schemes involving fraud, kickbacks and false billings. In one scheme, the owner of three home care agencies, is accused of collecting more than $75 million through Medicaid programmes. Santam reported 79 cases of commercial crime (including insurance fraud, forgery, and falsification of documents and theft) worth R7.3 million in 10 months An accountant, recently appeared in Bellville SCCC on 55 counts of fraud and theft (R986,651) - He allegedly stole money intended for orphans (Plea bargaining) RECENT EXAMPLES OF HEALTHCARE RELATED CRIMES Another accountant employed by a pharmacy in Bellville last month, was given a suspended sentence (4 years suspended for five) on 10 counts of fraud involving R218, 510. (Received a R50,000 loan but banked it twice). On 27 February 2014 an employee of Statusfin submitted 25 false claims (R250,000). (Plea bargaining) A FinMark Trust study released in 2012 showed there were between 1 and 1.5 million hospital cash plans in place, covering about 2.4 million South Africans, with an estimated 50,000 new policies sold each month. The highest amount of abuse of these plans is taking place in KwaZulu-Natal but it appears to be spreading to other provinces. OTHER ORGANISATIONS INVOLVED WITH INVESTIGATIONS Hospital cash plans abuse The Association for Savings and Investment South Africa South African Insurance Crime Bureau (SAICB) was launched in 2008 to address organised crime in the short term insurance industry “Their aim is not to replace the internal investigation units of insurance companies but to specifically look at crime, affecting multiple companies, ie syndicated crime. This cannot be done in isolation, as the insurance industry shares clients and criminals with other sectors like long term insurance companies, medical schemes industry, the banks and others. Ultimate aim is to create a joint initiative for the whole financial services industry. THE PREVENTION OF ORGANISED CRIME ACT, 121 of 1998 Section 1 of POCA provides that “enterprise” includes— “any individual, partnership, corporation, association, or other juristic person or legal entity, and any union or group of individuals associated in fact, although not a juristic person or legal entity”. a “pattern of racketeering activity” means— “the planned, ongoing, continuous or repeated participation or involvement in any offence referred to in Schedule 1 and includes at least two offences referred to in Schedule 1, of which one of the offences occurred after the commencement of this Act and the last offence occurred within 10 years (excluding any period of imprisonment) after the commission of such prior offence referred to in Schedule 1”. LATEST CONSTITUTIONAL VIEWPOINT Savoi & Intaka Holdings v NDPP & Min of Justice & Const Development 2014 (1) SACR 545 (CC) Criminal law challenge Law of Evidence challenge Not unconstitutional Organised crime in South Africa Message to forensic investigators Implication for health care crimes THE IMPORTANCE TO KEEP UP TO DATE WITH NEW TECHNOLOGY Director and joint head of Forensics at ENSAfrica, David Loxton, says the bulk of his practice was devoted to procurement fraud and business hijackings, two years ago. However, in the past year it has shifted to cyber crime — "the forum of choice for white-collar criminals". Loxton predicts that in the next three years the fruits of cyber crime will outweigh the fruits of all other whitecollar crimes. Loxton says South Africa has a serious skills crisis in this area. In his experience, police lack the expertise to deal with cyber crime and there are "very few prosecutors in SA who understand it”. SIX STEPS IN THE USE OF NEW TECHNOLOGY The identification and measurement of losses to crime is an essential first step to successful combatting of the crime. For this we need to be hands on with our hardware and software “tools”. The second step relates to the analysis of the data and for this a more than basic knowledge of computer technology is essential (do not hesitate to outsource when needed). Step three is to obtain the evidence in a lawful manner. Step four is to understand the admissibility requirements so that the evidence will be acceptable in a court of law. Step five is to collect supportive (corroborating) evidence. Step six is to put measurements in place to prevent it from happening again. CONCLUSIONS Investigators should be sensitive about: differences in Criminal Law; the two sets of rules in the Law of Evidence; the influence of the Constitution on collecting and presenting of obtained evidence; seeing some health care crimes as organised crime; making use of the Constitutional court’s latest viewpoint; the need to outsource if needed; the use of new technology in investigating and preventing healthcare crime Thank you!!