A federal healthcare fraud charge under 18 U.S.C. § 1347 carries its own sentencing exposure. When the government can also show that a physician's billing conduct involved the unauthorized use of another person's identifying information, prosecutors can add a count of aggravated identity theft under 18 U.S.C. § 1028A, and that count carries a mandatory, consecutive two-year prison term with no judicial discretion to reduce it or run it alongside the underlying sentence. Understanding how ordinary billing conduct can trigger this charge, and where the Supreme Court has narrowed its reach, is essential to evaluating actual sentencing exposure.
The Mandatory Consecutive Two-Year Term
Section 1028A(a)(1) adds a two-year term of imprisonment on top of the sentence for the underlying felony whenever a defendant knowingly uses, transfers, or possesses another person's means of identification without lawful authority during and in relation to an enumerated predicate offense. Subsection (b) removes the sentencing judge's usual discretion: the court cannot place the defendant on probation, and no term imposed under the statute may run concurrently with any other sentence. The only exception allows multiple aggravated identity theft counts sentenced together to run concurrently with each other. Every other sentence stacks on top.
How Healthcare Fraud Becomes a Predicate Felony
Section 1028A(c) lists the felonies that can support the charge. Paragraph (c)(5) reaches any provision of chapter 63 of title 18, the mail, bank, and wire fraud chapter that also contains the healthcare fraud statute itself, 18 U.S.C. § 1347. Paragraph (c)(11) separately reaches false-statement offenses under the Social Security Act, covering Medicare and Medicaid billing misrepresentations. A physician convicted of healthcare fraud, or a related Social Security Act violation, has already satisfied the predicate-offense requirement. The remaining question is whether the government can prove the separate identity element.
Billing Conduct That Triggers the Charge
The Department of Justice's national healthcare fraud takedowns show the recurring fact patterns: billing under a patient's Medicare or Medicaid number for services never received or never authorized, billing under a deceased patient's identity, or submitting claims under another provider's National Provider Identifier without that provider's knowledge. The 2026 National Health Care Fraud Takedown, announced June 23, 2026, charged 455 defendants, including 90 doctors and other licensed medical professionals, in schemes exceeding $6.5B in alleged losses, and multiple cases paired healthcare fraud counts with aggravated identity theft charges tied to unauthorized use of a provider's or patient's identity.
A mandatory two-year sentence, imposed without judicial discretion and stacked on top of the underlying healthcare fraud sentence, turns a billing dispute into a substantially longer prison exposure.
The Supreme Court's Narrower Reading in Dubin
The identity element requires more than a patient's name on a billing form. In Dubin v. United States, 599 U.S. 110 (2023), the Supreme Court unanimously held that use of another person's identifying information must be at the crux of what makes the underlying conduct criminal, not an incidental feature of how the claim was submitted. Dubin had billed Medicaid for psychological testing while misrepresenting who performed it, listing the patient's real Medicaid number on a claim for services the patient actually received. The Court found the number incidental to the fraud and vacated the conviction. The decision narrows the charge rather than eliminating it: prosecutors still bring it when the identifying information itself is what makes the billing fraudulent.
Collateral Exposure Beyond the Two-Year Term
A federal healthcare fraud conviction, with or without an added identity theft count, typically triggers mandatory exclusion from Medicare and Medicaid, a consequence our companion piece on OIG exclusion covers in detail. A physician who receives a grand jury subpoena in a healthcare fraud investigation should assume the government is already reviewing billing records for unauthorized identity use. Our companion piece on grand jury subpoenas in healthcare investigations walks through the response timeline.
Why Early Legal Counsel Is Critical
It is critical that physicians promptly retain experienced healthcare defense counsel upon receiving a subpoena, audit notice, target letter, or other government inquiry that could lead to a healthcare fraud charge. Early legal intervention can protect the physician's rights, shape how the government characterizes the identity-related conduct at issue, avoid inadvertent admissions, and preserve defenses, including a Dubin-based challenge to an aggravated identity theft count. Delaying representation can significantly affect the outcome of the matter and the physician's sentencing exposure.
How Health Law Alliance Can Help
Health Law Alliance defends physicians against healthcare fraud investigations and prosecutions, including cases in which the government has added or threatened an aggravated identity theft count under 18 U.S.C. § 1028A. Our bench includes a former federal prosecutor and a former senior healthcare compliance executive, background that shapes how we evaluate whether the identity-related conduct the government cites is actually central to the alleged fraud. If your practice is facing a healthcare fraud investigation, contact us for a free, confidential consultation.
