In a research conducted by several doctors in Germany against the developed countries revealed that fraud in health care is the most potent source of which can be detrimental to health insurance, especially insurance companies. Fraud carried out with deliberate intent to gain advantage over such actions. In the United States health insurance industry suffered losses in the hundreds of millions of dollars a year are caused by the fraudulent act, which, if estimated in the U.S. insurance industry suffered losses of between 3 -7% in one year as a result of this action.
Based on data from the Coalition Against Insurance Fraud in 2006 the United States, the biggest losses the insurance industry in the United override health insurance, where losses reached U.S. $ 54 billion vehicle insurance then came second with a loss rate of U.S. $ 13.5 billion, followed by insurance and business / commercial for U.S. $ 10 billion, and home insurance losses of around U.S. $ 2.5 billion. Meanwhile, Global Head of Insurance Practice Barry Rabkin of Financial Insights research study reveals fraud has caused the insurance industry in the United States suffered losses of around U.S. $ 80 billion per year. Insurance fraud is a crime that violates the law against the insurance company with the purpose of obtaining financial advantage illegally from the closure of a risk.
There are several factors that allow the occurrence of fraud include:
1. The need (need) situation where the policyholder and / or the insured before the loss was having financial difficulties;
2. Chance (opportunity) for example because the losses that can not be traced or is there a legal loophole that could be exploited by the policyholder and / or the insured to file a fictitious kaim;
3. Greed (Greed).
B. Definition
In practice, insurance coverage is an agreement with the element of mutual trust between the insurer and the insured. Insurers believe that the insured will provide all the information properly. On the other hand also believe that if the insured event occurs the insurer will pay compensation. Mutual trust is the basis of the principles of honesty, which is a very important principle in any coverage agreements, that must be met by the parties who entered into an agreement to avoid the occurrence of insurance fraud.
Today the principle of perfect honesty better known as the principle of Utmost good faith or uberrimae fidei. Good faith can be translated literally as good faith. Thus Utmost good faith can be translated as the good faith that to the best / perfect.
Actually, the general principle of good faith and honesty of the perfect can be interpreted that each party to a treaty which will be agreed upon by law have an obligation to give information or information as complete, which will be able to influence the decisions of the other party to enter into an agreement or not, whether such information was requested or not. The term fraud (UK) or fraude (Netherlands) is often translated as a form of cheating against the insurer (insurance fraud) is already anticipated in Article 251 of Commerce Code, which states:
"All notices of erroneous or incorrect, or all of the known state of concealment by the insured, even if done in good faith, the nature of such a way that the agreement will not be held or not held to the same conditions, if the insurer knows the state The real of all that, making the coverage was canceled ".
In order to Indonesian law crime of cheating (fraud) against an insurance company regulated by the Book of Criminal Justice Act ("Code") equated with criminal fraud as set forth in Article 381 and Article 382 of the Criminal Code.
Article 381:
"Anyone with the intellect and guile to mislead people about matters of insurance cover relating to dependents, so he took the insurance arrangements that would not be made or not made with a similar condition that, if matters of state if he knew that sebenarbenarnya, punished jail for ever one year and four months ".
Article 382
"Whoever with the intent to benefit themselves or others by fighting the right, while it is detrimental to the insurer or the person who bears the legal responsibility to hold the goods on board the letter, burn or cause an eruption in something of goods that enter danger of fire insurance, or mengaramkan or strand, destroy, or damage that can be used again without ships (boats) are insured up or the cargo or cargo to be received wages have been insured or are to complete the vessel (boat), people have lent money to dependents vessel (boat) that , sentenced to five years old forever ".
To stay focused on the theme of this seminar, the author tries to give the limits understanding of fraud in connection with the insurance industry alone, which systematically summarized from several sources, as follows:
Black's Law provides a definition of fraud as follows:
"An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some Valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by word or by conduct, by false or misleading Allegations, or by concealment of That Should the which have been disclosed, the which deceives and is intended to deceive another so Marshall That he act upon it to his legal injury. Anything calculated to deceive, whether by a single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or innuendo, by speech or silent, word of mouth, or look or gesture ".
Compare with the National Care Anti-Fraud Association (NHCAA) an institution fraud yangkhusus addressing problems in the field of health care in America provides a definition of fraud as follows:
"An intentional misrepresentation or Deception That the individual or entity makes, knowing the misrepresentation That Could result in some unauthorized benefit to theindividual, or the entity, or to another party". Law of the State of New Hampshire Insurance defines fraud as follows:
"Commits with a purpose to injure, defraud or deceive any insurers, knowingly submits orhelps someone else to submit any written or oral statements knowing That thesestatements contain false, incomplete, or misleading information conserning anyapplication claims for payments or benefits pursuant to an insurance policy" .
Dictionary of insurance that serves as a guide for practitioners in Indonesia equate understanding of insurance fraud with criminal fraud, and fraud gives light as:
"The act of fraud, misrepresentatisi important fact that was made intentionally, with the intentions of others believe that fact and consequently man suffering from financial difficulties".
Based on some of the definitions mentioned above, can be seen that the fraud or kecuranganmemiliki four criteria that must be met, namely:
1. act was committed by the perpetrator intentionally;
2. the victim;
3. sacrifice to placate the perpetrator;
4. the losses suffered by victims
Fraud and abuse in the form of the Insurance Industry
By its nature, the authors divide the form of insurance fraud into two categories namely:
a. Conceal material facts (misrepresentation of material fact)
b. False claims (false claim)
Concealing Material Facts (misrepresentation of material fact)
Disclosure of material facts with frankness is an absolute obligation to be performed by each party in an agreement coverage.
Information or facts and information that must be disclosed prior to the agreement of coverage, can be categorized as follows:
a. facts are based on internal factors which indicates the risk is greater than that expected from the nature or group;
b. facts of the external factors to the risk is greater than normal;
c. a fact which makes the possibility of bigger losses than the
estimated;
d. data losses and claims from the previous policy (if any);
e. rejection has ever done or requirements imposed by
other insurer (if any);
f. a fact that limits the right of subrogation;
g. the existence of non-indemnity policies;
h. facts relating to the subject matter of insurance.
The importance of the facts or the information disclosed is material because each material fact may affect the insurer in the acceptance or rejection of risk, or in setting premiums or contractual terms and conditions as are material and must be disclosed. No disclosure of material facts is the beginning of the fraud in an insurance coverage.
Case in point:
Claims death that occurred in Medan and Jambi. The insured and the policyholder or at the closing of the policy (policyholder age 6 months) by one-one insurance company in Indonesia did not disclose the actual facts. The policyholder or the insured and declared that never had a disease, and within 3 (three) years never do surgery.
After our investigation, was known to the insured or the policyholder has long suffered from disease and hepatoma Residif CA Gaster (gastric cancer), according ketarangan treating physician, the insured or the policyholder and the first gastric cancer was detected from 1 (one) year before insured or policyholder and closure policy. And unfortunately again the policyholder or the insured and have undergone surgery for the disease.
In such cases we draw a conclusion that at the time of closing
the insured and the insurer or the policyholder not reveal the actual material facts truthfully that he suffered from a dangerous disease, which, if the disease is disclosed it will affect the coverage, therefore in accordance with article 521 of Commerce Code coverage is void. Perpetrators of fraud in the concealment of material facts (misrepresentation of material fact) this is the agent, the policyholder, the beneficiary and the physician.
C. False claims (false claim)
False claims is an attempt to collect or demand payment to a person or company based on the data he knows is false or data that has been engineered. False claims are always followed by other crimes such as falsifying documents is important in connection with the claim, doing engineering events, actions planned by the standard to fool certain parties with intentions of taking advantage, making a false laboratory test results, make a doctor's certificate false, and others that are the basis to be able to file a claim. False claims are usually done with the element of intent from people who are interested in the insurance, for example, the policyholder is not to be insured and or his heirs. False claims or claims that are not correct or misleading always involves a conspiracy of other people who helped pave the way for fraudulent claims, such as physicians or agent. False claims is a common form of fraud most often occurs in the insurance industry, the goal is to obtain improper payments he received.
Case in point:
1. Claims died "by accident" that occurred in Sidikalang, North Sumatra on the policy with additional coverage of death and disability compensation 7 fixed by accident (Accidental Death Rider And disablement). Policyholder's claim over the death of the insured, a claim be submitted with some evidence, among others: (i) kronogis accidents resulting in death of the insured, and (ii) medical certificate stating that the insured died from a brain hemorrhage caused by impact to the head. After conducting an investigation, we can prove that the cause of death of the insured is not by accident, as stated in the medical certificate and / or kronogis cause of death made by the policyholder, but died of a disease and the disease has existed prior to the closing of insurance. In this case it is clear that the false claim that the insured not only his own, he was aided by the agent and the doctor to smooth out these false claims. And false claims act is also always accompanied by other criminal acts of criminal fraud.
2. Provision of billing services or services that are not there;
3. Physicians providing unnecessary services or perform unnecessary tests;
4. Physician and / or hospital service charge that was never done.
Perpetrators of fraud in a fraudulent claim (false claim) is insured and / or policy holders, heirs, doctors, hospitals, pharmacists (pharmacists) and the laboratory. In connection with the title of this paper, the definition of fraud and other forms of fraud that have been the beginning of this paper the authors describe, following the author will try to discuss perbuatanperbuatan fraud (cheating) in the insurance industry in terms of the Indonesian criminal law. The author tried to make this paper as simple as possible so that participants are not from the law can properly understand and review.
D. As a Fraud Crime Crime
Basically, crime is an act or series of acts that criminal penalties attached to it. Thus, viewed from the term, is the nature of the act alone that includes a criminal offense. While the properties of the person doing the crime to be part of the issue of criminal liability. Indonesian criminal law, criminal law as civil law countries other systems is rejected criminal law stemming from the legislation. Whether or not a criminal act does not depend on whether there are people who commit
the criminal, but depending on whether the prohibition rules of criminal legislation as well as threats against an act such as the legality principle formulated in Article 1 paragraph (1) of the Criminal Code.
One of the essential elements of an act (offense) is a criminal nature against the law (wederrechtelijkheid) or not expressly stated in an article of criminal law, because every new act can be punished if such actions have a nature against the law (nulla poena delictum nullum Seine lege poenali).
Associated with other forms of fraud in the insurance industry, especially health insurance, as has the writer describe above. Now the author will describe the act of fraud was based on acts that are punishable under criminal law, as follows:
In this discussion, the authors did not use the Act No.. 2 of 1992 on Insurance Business ("Insurance Law"), because almost no one else in the article Insurance Act that expressly regulate the issue of fraud, even though Insurance Act should be special rules berifat (lex specialis) for rules that are general (lex generalis) which has been regulated in the Penal Code. But to not dampen our intention in talking about health insurance fraud in this, the author will use the articles in the Penal Code as a knife analysis.
E. Criminal Fraud
Crime that most often occurs against an insurance company fraud is a felony, in which the prospective insured / policyholder not reveal faktafakta honestly significant with respect to health.
Article 381 of the Criminal Code has launched a criminal act committed fraud against the insurance industry. Penal Code seeks to provide protection for the insurance industry by criminalizing the insurance agreement is made between an insurance company as an insurer by consumers as the insured / policyholder. Protection provided by the Penal Code is the protection against any disclosure of the facts that are not true.
In general, the elements of criminal acts of fraud that must be met in this case did not disclose important facts in an insurance coverage (Letter of Request for Insurance) are as follows:
a. The existence of words written by a lie;
In conducting insurance coverage, the prospective insured / policy holder usually does not reveal the real situation that has been learned, with the intention to request the filing of insurance approved by the insurance company. The prospective insured / policy holder will usually berbohongan about the situation himself by making up a story that is not true. Usually this action is followed by another lie to cover up a real situation.
b. With cunning and guile sense;
Usually to smooth out his intention of cheating the prospective insured / policy holder will do so crafty insurance companies do not
knowing lies.
c. False condition;
False state of the candidate in question is insured, the policyholder will claim as if he was able to make premium payments in large amounts within the time stipulated by the insurance company. Though the goal is to deceive an insurance company to make claims early. For example he was a successful businessman or a company.
d. Benefit themselves in a way against the right.
For his actions, the prospective insured / policyholders will benefit. This is the most basic elements of criminal fraud that must be met. Compare with the elements of criminal acts of fraud that must be met in accordance with the contents of Article 381 of the Criminal Code, as follows:
a. with reason and trickery;
b. mislead those who bear on matters of insurance relating to the dependents;
c. so he took the insurance that will not make an agreement made or if made not with similar conditions;
d. if known the actual state
Criminal Counterfeiting
Criminal acts of forgery that the authors intention in writing this not as a criminal forgery as provided for in Article 21 (5) The Insurance Act. Discussion of criminal acts of counterfeiting in this paper is to include the formulation of forgery as set forth in Article 263 of the Criminal Code.
In some cases insurance crime, usually punishable act of counterfeiting is a follow-up actions are preceded by a criminal act of fraud. Counterfeiting a criminal act only as a complement of deception as a criminal act has been the author of the case examples discussed earlier.
There are 2 (two) important elements that must be met by the perpetrators of criminal acts of counterfeiting are as follows:
a. make a fake letter;
is meant to make a fake letter is to make the "letter" that it was not supposed to (not true), or make a letter such a way that shows the origin of the letter that is not true.
b. forged letter.
Action is to change the letter forged such a way that it becomes another of the original content or that the letter was to be another of the original. Falsifying signatures and pasting pictures of others in a driver's license, diploma, including criminal acts forged.
Which is defined as a letter in this article are all well-written letter by hand, printed, or written using a typewriter and others. Forgery of the letter can lead to gains in one hand as well as a loss to another party. The letters were forged that have a letter that:
• may issue a right (for example: a list of hospital bills (invoices) for a given type of medical care actually never carried out)
• may issue a contract (eg insurance policy)
• may issue a discharge of indebtedness (eg receipts)
• a letter that may be used as an explanation for something acts or events (eg medical certificate)
F. Conclusion
Fraud against insurance companies is a criminal offense that can be done by anyone. Not limited to the insured and the policyholder, the insurance cover agent, the hospitals and physicians can also perform fraud against insurance companies, and even worse insurance companies can also perform fraud against other insurance companies.
Until now the problem of fraud by the insurance company in Indonesia is still limited as the subject alone, but for all we know is actually a lot of fraud has occurred in several insurance companies in Indonesia, but has never done any action against the perpetrators.
The author hopes that through this seminar insurance industry will be more and more sensitive in detecting early symptoms of fraud.
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