24.26 Soliciting or Receiving Kickbacks in Connection with Medicare or Federal Health Care Program Payments (42 U.S.C. §§ 1320a-7b(b)(1)(A))

            The defendant is charged in [Count ______ of] the indictment with [soliciting] [receiving] kickbacks in connection with [Medicare] [federal health care program] payments in violation of Section 1320a-7b(b)(1)(A) of Title 42 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant knowingly and willfully [[solicited] [received]] [specify remuneration alleged]; 

            Second, the [specify remuneration alleged] was [solicited] [paid] and at least one purpose of the payment was to [induce] [and] [or] [in exchange for] the referral of a patient insured by [Medicare] [specify federal health care program] for [furnishing] [arranging for the furnishing] of an item or service; [and] 

            Third, the patient’s items or services [furnished] [arranged to be furnished] were covered, in whole or in part, by [Medicare] [specify federal health care program]; [and] 

            [Fourth, [Medicare] [specify federal health care program] is a federal health care program.] 

Comment 

            This instruction is largely based on the Eighth Circuit’s Model Criminal Instruction 6.42.1320, as modified per the Ninth Circuit’s decision in United States v. Hong, 938 F.3d 1040, 1048-49 (9th Cir. 2019). 

Revised March 2023