医保骗保行为目前受到行政法和刑法的规制,在社会危害性达到一定程度时以诈骗罪定罪处罚。过度医疗是实施骗保的手段之一,但目前刑事领域的规范性法律文件并未对该行为作出明文规定,对“过度”的判断标准和刑事责任罚金的裁量基准也有待补充。医保骗保行为的刑法规制应当基于过度医疗行为的法益侵害性和骗保行为相较于其他诈骗犯罪的特殊性进行完善。一是加强对过度医疗行为的规制,从源头遏制以过度医疗实施骗保的行为。从立法上明确“过度”的判断标准,增设医保骗保相关罪名。二是完善医保骗保行为定罪处罚规则。对兜底条款进行目的解释和适当限缩,对以过度医疗实施骗保的行为在侵害生命健康法益的情况下,适用数罪并罚规则。三是细化罚金的裁量基准。针对不同行为的危害程度分别设定不同的罚金区间。通过完善刑事立法中有关医保骗保行为的判断标准和裁量基准,完善对以过度医疗实施医保骗保的刑法规制。

Currently, medical insurance fraud behavior is regulated by administrative law and criminal law. When the social harmfulness reaches a certain level, it will be convicted and punished as the crime of fraud. Excessive diagnosis and treatment is one of the means to carry out medical insurance fraud, but it has not been explicitly stipulated in the regulatory legal documents in the criminal field at present. Moreover, the judgment standard for "excessive" and the discretion benchmark for criminal liability fines also need to be supplemented. The criminal regulation of medical insurance fraud behavior should be improved based on the infringement of legal interests by excessive medical treatment and the particularity of medical insurance fraud behavior compared with other fraud crimes. First, the regulation of excessive medical treatment should be strengthened to prevent insurance fraud by excessive medical treatment behavior from the source. The judgment standard for "excessive" should be clearly defined in legislation, and relevant crimes related to medical insurance fraud can also be added. Second, the rules for conviction and punishment of medical insurance fraud behavior should be improved. The general clause should be interpreted in light of its purpose and restricted. When the insurance fraud behavior committed by excessive medical treatment infringes on the interests of life and health, the rule of combined punishment for several crimes should be applied. Third, the discretion benchmark for fines should be refined. Different fine ranges should be set according to the degree of harm of different behaviors. By improving the judgment standards and discretion benchmarks of medical insurance fraud behavior in criminal legislation, it is conducive to realizing the criminal regulation of medical insurance fraud committed through excessive medical treatment.