Fraud for Services Not Provided: Prior Agreement Does Not Protect

Imagine the scene: in Capbreton, an elderly homeowner receives daily visits from a nurse for treatment prescribed by her doctor. Everything seems in order: the social security fund has given its prior agreement, invoices are sent, reimbursements follow. But what if the nurse, instead of spending thirty minutes with her, stays only five minutes? Or worse, if he bills for visits he never made? This is precisely the question the Court of Cassation decided in 1993, and it remains highly relevant, particularly in the jurisdiction of Mont-de-Marsan, where many health professionals practise independently.

Every owner, tenant or property professional sometimes wonders: 'Does the prior agreement of the Sécu give carte blanche?' The answer is no, and this decision demonstrates it with exemplary clarity.

This decision, handed down by the Criminal Chamber of the Court of Cassation on 17 November 1993 (No. 92-86.736), concerns a nurse who had obtained prior agreement from the fund for paramedical acts, but then reduced the duration of the services or billed for acts not performed. The Court held that the prior agreement does not preclude a finding of fraud, because the fraud relates to services not provided, not to the principle of coverage. In other words, the administrative green light does not give a blank cheque to bill for nothing.

The Facts: A Story That Happens Every Day

Mr Dedieu is a self-employed nurse in the south of France. Like many of his colleagues in Parentis-en-Born or elsewhere, he looks after chronic patients, often elderly, for nursing care or injections. For some acts, the nurses' tariff requires prior agreement from the social security fund: the fund must verify that the care is medically justified before committing to reimburse it. Mr Dedieu fills in the forms, sends them, and obtains agreement for several patients. So far, nothing unusual.

But the fund, after checking, notices that the invoices do not match reality: for some patients, Mr Dedieu bills for thirty-minute sessions when he stays only ten minutes; for others, he bills for acts he never performed. The fund files a complaint, and Mr Dedieu is prosecuted for fraud or false declaration to obtain undue benefits, under Article L. 377-1 of the former Social Security Code (now incorporated into the Social Security Code and the Criminal Code).

Before the criminal court, Mr Dedieu raises a major argument: the prior agreement was given, so the fund had validated the principle of the care. There can be no fraud, since everything was transparent. The court nevertheless convicts him. He appeals, but the court of appeal confirms. He then appeals to the Court of Cassation, arguing that the prior agreement excludes deception as to the nature of the acts. The Court of Cassation dismisses his appeal and upholds the conviction.

The Reasoning of the Court — Analysed

The heart of the reasoning is contained in one sentence: 'If the prior agreement of the social security body is a necessary condition for the reimbursement of certain medical or paramedical acts, this circumstance has no effect on the commission of the offence of fraud or false declaration where it relates to services not provided.' In other words, the prior agreement does not cover the very existence of the service; it only validates the principle of reimbursement if the service is provided under the prescribed conditions. If the service is not provided, or provided only partially, the prior agreement does not make it real.

The Court relies on the former Article L. 377-1 of the Social Security Code, which punishes anyone who obtains reimbursement for services not provided. It recalls that the offence is constituted by the mere fact of the false declaration, regardless of the prior agreement. The legal basis is clear: fraud is established as soon as the declaration does not correspond to the reality of the care given. The prior agreement is merely an administrative formality; it does not turn a fictitious act into a real one.

This reasoning is part of a consistent line of case law: the courts refuse to treat administrative authorisation as a blank cheque. undefined, I have come across cases where health professionals thought that after the CPAM's agreement, they could reduce care without consequences. Serious mistake. The Court of Cassation reminds us: the organisation's trust is not a permit to defraud. The decision is therefore a confirmation, not a development or a reversal.

What This Changes for You — Concretely

For landlord owners: if you rent a property to a health professional (for example, a nursing practice in Parentis-en-Born), this decision has no direct impact on your lease. But it illustrates a general principle: an administrative authorisation does not exempt you from verifying the reality of contractual obligations. If your tenant bills you for repairs not carried out, a prior agreement from the syndic does not protect him.

For tenants: if you are a patient and suspect overbilling for home care, know that the fund's prior agreement does not justify acts not performed. You can report anomalies to the CPAM, which may initiate an inspection. Example: a nurse bills 30 sessions at €20 each, i.e. €600 in undue reimbursement. The prior agreement does not cover him.

For co-owners: if a health professional practises in the co-ownership (for example, a physiotherapist), the syndic may need to verify activity declarations. This decision reminds us that administrative authorisations are not a guarantee of good faith. In the event of a dispute over the co-ownership rules, the prior authorisation of the general meeting is not enough to justify abusive use.

If you are in this situation, you should keep all evidence of the services actually provided: attendance records, witness statements, etc. The limitation period for the social security's action for recovery of undue payments is 3 years (Article L. 133-2 of the Social Security Code). The amounts at stake can reach several thousand euros for series of fictitious care.

Four Tips to Avoid This Type of Dispute

• Keep an accurate register of acts performed: for each patient, note the date, start and end time, nature of the act. In the event of an inspection, this register is evidence. Do not rely on your memory alone.
• Never bill for an act not performed: even if the prior agreement is granted, billing for a fictitious service is fraud. If a patient cancels, do not bill. If you reduce the time, bill for the actual time.
• Check the tariff classification of acts: some acts require prior agreement, others do not. Ensure that the code corresponds to the actual act. An incorrect code may be reclassified as a false declaration.
• Respond honestly to inspections: the funds may check retrospectively. If an anomaly is detected, cooperate and regularise quickly. Good faith may mitigate sanctions, but not eliminate them.

Further Reading: Related Case Law and Developments

This 1993 decision is part of a line of case law that refuses to make prior agreement a shield against fraud prosecutions. One can cite the Criminal Chamber judgment of 20 January 1987 (No. 86-91.046) which had already held that a false declaration as to the nature of acts is punishable even if the organisation has agreed in principle. Conversely, some courts of appeal had occasionally accepted the argument of prior agreement as an element of good faith, but the Court of Cassation systematically overturned them.

The trend in the courts is therefore towards strengthening the fight against social security fraud. Since 1993, sanctions have increased: a fine of up to €5,000 and imprisonment of up to 5 years (Article 313-1 of the Criminal Code for fraud). For the future, the funds are increasingly using data mining to detect billing anomalies, making inspections more effective. This decision therefore remains a warning: prior agreement does not protect against the reality of acts.

Frequently Asked Questions

1. What should I do if I discover that my nurse is billing for acts not performed? Report it to your health insurance fund (CPAM). You can also file a criminal complaint. Keep your care records and invoices.
2. Does prior agreement guarantee that the care is necessary? No, it only guarantees that, if the care is provided in accordance with the prescription, it will be reimbursed. It does not prejudge the reality of the acts.
3. Can I be prosecuted if I am a patient and benefit from fictitious care? Yes, if you are an accomplice. For example, if you sign a false attendance certificate. Complicity in fraud is punishable.
4. What is the deadline to challenge an undue payment? The CPAM can claim repayment within 3 years of the undue payment. For criminal proceedings, the limitation period is 6 years from the last fraudulent billing.
5. Can a prior agreement be withdrawn afterwards? Yes, if the fund discovers that the conditions were not met. The agreement is conditional on the reality of the services.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →