The Canadian Bar Association
Criminal

Retain counsel if questioned about health benefits claims

After a Toronto hospital fired 31 employees for allegedly misusing its employee benefits plan, Toronto criminal lawyer Aaron Harnett says it’s important for all workers to be aware that any statements they give to their employer about their health claims may be handed over to the police.

“When an employer’s investigator brings an employee into a boardroom and starts asking questions about their health benefits claims and demands documents, all the employee’s statements can be turned over to the police if there is evidence of fraud,” he tells AdvocateDaily.com.

“Employees do not have the same protection during those interviews that they would have if they were investigated by the police. As a result, they could face criminal charges for fraud and their statements would likely be admissible at a criminal trial.”

It's also important to obtain the advice of a lawyer if an employee is being questioned, Harnett says. 

"My advice to any employee who finds themselves suddenly called in to speak with an investigator asking about extended health care claims is to terminate the meeting and get the advice of a criminal lawyer," he says. "They have the right to leave a meeting. They aren't under arrest. There may be employment consequences but better to lose a job than your freedom."

Harnett, principal of Aaron B. Harnett Criminal Defence Lawyer, comments on the issue after St. Michael’s Hospital confirmed to the National Post that an audit allegedly revealed “irregularities” in health claims totalling about $200,000. 

While 31 people were fired, a number of others were suspended, says the newspaper. It remains unknown how many other employees are under investigation, it says. A hospital spokeswoman declined to provide detail about the nature of the alleged irregularities or say whether police would be called to investigate, it says. 

“Two years ago, an unknown number of Toronto Transit Commission employees allegedly colluded with a local orthotics shop to bilk the TTC’s benefit plan,” reports the Post. “One supervisor was suspended over the insurance fraud scheme that totaled up to $4 million in bogus claims. 

"In that case, investigators said a store created fake invoices for such items as orthotics, knee braces and socks, then split the cash with employees.”

Harnett, who isn’t involved in any matters relating to the firings at St. Michael’s Hospital or the investigation at the TTC, speaks generally on the issue.

He is currently representing several other individuals who have either been charged with defrauding their insurance company or are under investigation for claims made under their employee benefits plan. 

“I am aware from my work on these cases that there appears to be a co-ordinated effort among the insurance companies to crack down on claims that may have been exaggerated or are outright false,” he says. “Some employees have been called in for vigorous interviews by their employer or an insurance company investigator."

Harnett notes that insurance company investigators are often retired senior police officers with impressive credentials and years of hard-nosed interrogation training.

“Most employees are completely outgunned by the investigator," he says. "They aren't aware of what the investigator already knows, and that makes them extremely vulnerable."

He says an example of a fraudulent claim is if an individual submitted a claim with a receipt for an insured therapy such as physiotherapy when they actually received a service that isn’t insured, such as a facial. Another example is if an individual submitted a claim for a therapy that wasn’t done at all and then that person and the service provider or the clinic shared the amount the insurance company paid out. 

“It seems that fraudulent health claims are rampant,” he says.

The fact that 31 people were fired from St. Michael's Hospital indicates the employer is serious about cracking down on potentially fraudulent claims, Harnett says.

"Hospital employees are difficult and expensive to replace so this tells me the employer sees this as a real problem and they are taking no prisoners," he says. 

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