IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

FILED: 96 MAR 14 PM 4:15

UNITED STATES OF AMERICA, Plaintiff,
vs.
WAYNE MEYEROWITZ, Defendant.

No. CR 94-333 SC

MEMORANDUM OPINION

THIS MATTER came before the Court sua sponte, and the Court, after considering the pleadins, the exhibits, the testimony of trial witnesses, the applicable statutes, and the arguments of counsel, dismissed Counts 118-204 of the Indictment. Not to more fully explain that ruling the Court FINDS AND CONCLUDES:

1. Defendant was charged in Counts 118 through 204 of the Indictment with Medicaid fraud;
2. In that part of the Indictment, the Defendant was charged with presenting and causing to be presented "false claims for payment for a physician's services to the Medicaid Program for the State of New Mexico, knowing such claims to be false, fictitious, and fraudulent because the individual who furnished each service was nt licensed as a physician." Indictment at 18.
3. The Medicaid fraud section of the Indictment was limited to alleged violations of 42 U.S.C. # 1320a-7b(a)(5).
4. That subsection is contained in a statute that reads in pertinent part as follows:

   Whoever --

   (1) knowingly and willfully makes or causes to be made any false statement or representation of a material fact in any application for any benefit or payment under a grogram under subchapter XVIII of this chapter or a State health care program ...

   (2) at any time knowingly and willfully makes or causes to be made any false statement or representation of a material fact for use in determining rights to such benefit or payment,

   (3) having knowledge of the occurrence of any event affecting (A) his initial or continued right to any such benefit or payment, or (B) the initial or continued right to any usch benefit or payment of any other individual in whose behalf he has applied for or is receiving such benefit or payment, conceals or fails to disclose such event with an intent fraudulently to secure such benefit or payment either in a greater amount or quantity than is due or when no such benefit or payment is authorized,

   (4) having made application to receive any such benefit or payment for the use and benefit of another and having received it, knowingly and willfully converts such benefit or payment or any part thereof to a use other than for the use and benefit of such other person, or

   (5) presents or causes to be presented a claim for a physician's service for which payment may be made under a program under subchapter XVIII of this chapter or a State health care program and knows that the individual who furnished the service was not licensed as a physician,

   shall (I) in the case of such a statement, representation, concealment, failure, or conversion by any person in connection with the furnishing (by that person) of items or services for which payment is or may be made under the program, be guilty of a felony ... , or (ii) in the case of such a statement, representation, concealment, failure, or conversion by any other person, be guilty of a misdemeanor ... .

   42 U.S.C. # 1320a-7b(a) (emphasis added).

5. Criminal statues must be strictly construed.
6. [Editor's Note: For the sake of clarity, I skipped transcribing here a long and detailed discussion of the history and meaning of this statute...]
7. ...
8. ...
9. ...
10. ...
11. ...
12. ...
13. ...
14. ...
15. ...
16. I note, in addition, that this statutory prohibition is directly contradictory to the language on at least two versions of Form HCFA 1500, Def. Ex. A (admitted at trial) and Pl. Ex. 26 (not admitted), which provides that under the Medicaid program, the provider's signature on the form certifies that "the services listed above were medically indicated and necessary to the health of this patient and were personally furnished by me or my employee under my personal direction." (Emphasis added.) From this form, it appears that services of an unlicensed physician, acting under the personal direction of a physician, may be billed to Medicaid.
17. This form bears the imprimatur of the "AMA Council on Medical Services 8/88" and of the "OMB-0938-0008" (Def. Ex. A); Plaintiff's Exhibit 26 has the later date of 12/90 after the OMB approval. OMB is the Office of Management and Budget, a federal agency.
18. The government pointed to the following language on Form HCFA 1500:
    

    BECAUSE THIS FORM IS USED BY VARIOUS GOVERNMENT AND PRIVATE HEALTH PROGRAMS, SEE SEPARATE INSTRUCTIONS ISSUED BY APPLICABLE PROGRAMS.

    The government argued that this language put the physician on notice that the form's language should not be relied on by the physician, and that instead, the various newsletters and reports sent to physicians' offices periodically should be sifted through and reconciled with any conflicting certification on the form itself.

19. As I mentioned several times during the trial of this case, it would take a "sharp Philadelphia lawyer" to ferret out the exact meanings and implications of these various contradictory and confusing directions. The devil in the paperwo4rk is that a physician and his employees can be held criminally responsible for mininterpreting the small print.
20. It troubles me that Congress has imposed criminal penalties for violations of a complicated program such as Medicaid, when federal agencies have complicated matters further by issuing forms intended and prescribed for use in these programs and the directions in the forms contradict the statute.

[signed] Santiago E. Campos
UNITED STATES DISTRICT JUDGE