Unlawfully accessing or disclosing protected health care information in Maine is a serious federal crime that may result in both incarceration and financial penalties. Set forth below are the federal statutes that pertain to such charges as well as an explanation of the importance of retaining an experienced federal defense attorney to ensure the most effective defense.
The Federal Laws that Protect Health Information
Wrongful disclosure of individually identifiable health information is covered by 42 U.S.C. 1320d-6, https://www.law.cornell.edu/uscode/text/42/1320d-6. This federal statute states that a person — including a healthcare employee or other individual — who knowingly:
- Uses or causes to be used a unique health identifier;
- Obtains individually identifiable health information pertaining to an individual; or
- Discloses individually identifiable health information about an individual to someone else.
may be charged with this offense. The companion statute defines individually identifiable health information as any information, including demographic information, that:
- Is created or received by a health care provider, health plan, employer or health care clearinghouse;
- Relates to past, present, or future physical or mental health condition of an individual; the past, present, or future provision of health care to an individual; or future payment of the provision of health care to an individual; or
- Identifies an individual or creates the reasonable basis of belief that the information can be used to identify the individual.
A Conspiracy to Unlawfully Use Health Information may be charged pursuant to 18 U.S.C. 371 the general federal conspiracy statute. https://www.law.cornell.edu/uscode/text/18/371. This offense requires evidence establishing that two or more persons entered into an agreement to commit an offense against or to defraud the United States or its agencies in any manner or for any purpose.
In order to obtain a conviction of a federal conspiracy charge, prosecutors must prove an agreement and a so called “overt act” in furtherance of the conspiracy. The agreement may be spoken, in writing, or implied by the course of events. Merely associating with an individual who is planning to commit a crime is not a conspiracy. However, actions intentionally undertaken in furtherance of the agreed upon criminal conduct are ordinarily sufficient to prove intent to engage in a conspiracy.
The Penalties for Unlawful Use of Health Information and Conspiracy
The penalties for unlawful use of health information includes:
- A fine of up to $50,000 and imprisonment for up to a year
- If the offense is committed under false pretenses, the consequences increase to a fine of up to $100,000 and imprisonment of not more than five years.
- If the offense was committed for the purpose of transferring individually identifying health information for commercial advantage, personal gain or malicious harm, the penalties are increased to up to a $250,000 fine and imprisonment of up to ten years.
- Conspiracy against the United States or its agencies is a felony which carries penalties of imprisonment of up to five years and a fine of up to $250,000.
Why You Need a Federal Defense Attorney to Fight for You
The United States Sentencing Guidelines (the guidelines), developed in 1987, greatly influence the actual sentence one may receive for a conviction of a federal offense. This system is much different that the sentencing regime under state law in Maine. Some of these differences include:
- In state court, sentencing is dictated either by agreement between the defense and prosecution or left to the discretion of the judge. In federal court, the sentencing range for a specific crime is initially established by the guidelines. Although federal judge is not prohibited from imposing a sentence more lenient or more severe than the guideline range, the range is the starting point of his or her ultimate sentencing decision.
- Plea bargains which provide for a specific sentence are often reached in state court but are rarely permitted in federal court.
- While the defendant’s previous criminal history and the seriousness of the crime are important factors i calculating the federal sentencing guideline range, the process by which the sentence is determined under federal guidelines is quite complex and includes a number of other factors, including personal background, family circumstances, and other mitigating factors.
Due to the complexity of federal criminal cases, it is important to retain a defense attorney who has experience in this type of case and understands nuances of the federal sentencing guidelines. Early in his career Attorney Richard S. Berne served as an Assistant United States Attorney in both the Eastern District of New York and the Northern District of California. During this time he became extremely well-versed in the elements needed to prove federal crimes, in the process by which these crimes are prosecuted, and in the intricacies of the United States Sentencing Guidelines. If you are under investigation for or have been charged with conspiracy to unlawfully use health information, contact Attorney Berne for a free initial consultation.