Com. v. Kobrin

• Decision Date: 12 September 2008
• Docket Number: No. 04-P-1678.,04-P-1678.
• Citation: 72 Mass. App. Ct. 589,893 N.E.2d 384
• Parties: COMMONWEALTH v. Kennard C. KOBRIN.
• Court: Appeals Court of Massachusetts

893 N.E.2d 384

72 Mass. App. Ct. 589

COMMONWEALTH v. Kennard C. KOBRIN.

No. 04-P-1678.

Appeals Court of Massachusetts, Bristol.

Argued September 14, 2007.

Decided September 12, 2008.

George C. Deptula, Boston, for the defendant.

Peter Clark, Assistant Attorney General, for the Commonwealth.

Present: LENK, GELINAS, & GRAINGER, JJ.

LENK, J.

The defendant, Kennard C. Kobrin, is a board certified psychiatrist who for many years maintained a busy private practice in Fall River. Many of his patients had dual diagnoses of mental illness and substance abuse; a significant subset was eligible for benefits under either the Medicare or Medicaid program, or both. In 1998, a grand jury returned sixteen indictments against Kobrin in eighty-two counts on charges stemming from practices in his Fall River office; the charges were in the nature of Medicaid fraud under G.L. c. 118E, §§ 40, 41, and the illegal prescribing of controlled substances under G.L. c. 94C, § 32B(a). Four years later and after a month-long trial by jury, the defendant was acquitted of all but three counts: one count of illegally prescribing a Class C controlled substance (the benzodiazepine known as Klonopin) to a patient of long standing (Patient D), and two counts of Medicaid fraud for ordering unnecessary psychological testing of two patients (Patients D and G).

The trial judge denied Kobrin's posttrial motions for required findings of not guilty pursuant to Mass.R.Crim. P. 25(b)(2), 378 Mass. 896 (1979), as to all three convictions but allowed his later motion for new trial pursuant to Mass.R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001), on the two Medicaid convictions. The judge declined to order a new trial as to the illegal prescribing conviction. The matter is now before us on cross appeals: Kobrin appeals the denial of his motions for required findings of not guilty on all three convictions as well as the denial of his motion for new trial on the illegal prescribing conviction; the Commonwealth appeals the order allowing the motion for new trial on the two Medicaid fraud convictions. We affirm in part and reverse in part, concluding that a new trial was properly ordered on the Medicaid fraud convictions and that the evidence was insufficient to sustain a conviction on the illegal prescribing conviction.

Background.¹ Between 1982 and 1999, Kobrin maintained a private practice in psychiatry in leased professional office space located at 210 Rock Street in Fall River. As mentioned, many of his patients presented with psychiatric illnesses as well as substance abuse issues and qualified for benefits under the Medicare and Medicaid programs. Kobrin shared his office suite with other mental health practitioners, including psychologists who subleased space one or more days per week, paying handsomely for doing so. Kobrin referred patients to these psychologists (the "tenant psychologists") for testing and therapeutic services; the majority of the services performed was reimbursed by insurance including Medicare and/or Medicaid.

In December, 1998, the grand jury returned sixteen indictments against Kobrin in eighty-two counts, charging him with illegally prescribing controlled substances; Medicaid fraud based on the aforesaid prescriptions; Medicaid fraud based on his soliciting and accepting kickbacks from the tenant psychologists after referring patients to them for medically unnecessary psychological testing²; and Medicaid fraud based upon his ordering of the aforesaid psychological tests.³

Shortly after these indictments were handed down, the Commonwealth supplied grand jury minutes to the Board of Registration in Medicine (board) for use in its administrative review of Kobrin's practice. This review included the propriety of prescriptions for benzodiazepines he wrote for certain of his patients including, but not limited to, those patients covered by the indictments. Kobrin's license to practice was summarily suspended in March, 1999, but months later was reinstated pending a final hearing on the merits. In February, 2000, after an evidentiary hearing, the board concluded that Kobrin had not illegally prescribed benzodiazepines or otherwise rendered substandard psychiatric care. Kobrin maintained his license to practice until after his 2002 conviction on the three charges at issue in this appeal. His pretrial motion to dismiss the criminal illegal prescribing charges on collateral estoppel grounds was denied, and at trial, he was not permitted to introduce evidence of board's decision.

Of the eighty-two counts of the indictment, only sixty-four went forward to trial in 2002. Those sixty-four counts consisted of twenty-five counts of violating G.L. c. 118E, § 40 (Medicaid fraud for ordering psychological tests for patients denoted A, B, C, D, and G, as well as three undercover State troopers who posed as drug-seeking individuals); twenty-six counts of violating G.L. c. 118E, § 41 (Medicaid fraud for kickbacks from tenant psychologists); and thirteen counts of violating G.L. c. 94C, § 32B(a) (illegal prescribing of benzodiazepine to patients denoted A, B, C, D, F, and G).

The Commonwealth's theory of the case was, as the prosecutor succinctly stated in his closing, "It's all about money." "It's about giving patients things that they want so they will come back so that he [Kobrin] can bill the Medicaid program." The Commonwealth attempted to prove that Kobrin exploited his patients' vulnerability in a number of ways for his personal profit, while, as it were, "gaming" the Medicaid program in the process. On this view, Kobrin devised a complex money-making arrangement with several interlocking components.

The first such component was said to be Kobrin's receipt of so-called kickbacks from the tenant psychologists. They paid him excessively high rents in return for a steady stream of profitable patient referrals for psychological testing generally reimbursable by Medicare and/or Medicaid. Ostensibly in aid of this, Kobrin established office policies that required new patients to undergo lengthy psychological testing whether the patients needed it medically or not, and routinely scheduled the patients for retesting, whether needed or not, at whatever intervals reimbursement would be available, ordinarily every six months. Another component was for Kobrin to profit from a high volume of frequent and reimbursable patient visits. To assure this, as well as a patient base that would be available for and cooperate with the psychological testing protocol, another interlocking component was put in place. Kobrin would prescribe to those patients with substance abuse problems the habituating if not addictive drugs known as benzodiazepines, for which Medicaid would often pay, and Kobrin would do so at low dosage levels and in small quantities that would keep this patient population coming back regularly for more of the same. This, in essence, was what the Commonwealth set out to prove.

The jury heard evidence from fourteen Commonwealth witnesses. Among them were witnesses who testified to various aspects of the aforesaid arrangement. Two tenant psychologists who over a number of years had administered tests to numerous patients referred to them by Kobrin, as well as one tenant psychiatrist who worked briefly with Kobrin, testified as to Kobrin's very busy practice, the high rents he charged them, the profitability of the high volume of referrals for reimbursable testing that he made, and the office policies that he set which maximized Medicaid reimbursements. Other witnesses testified to Medicaid claims processes, procedures, and forms; to office procedures regarding billing, scheduling, testing, and retesting; as well as to the financial aspects and profitability of the practice. Two undercover State troopers who had posed as patients with drug abuse issues testified that they were required to undergo psychological testing before being seen by a psychiatrist but that Kobrin had not prescribed them any abusable drugs.

In addition, the jury heard testimony from four experts, two of whom testified as to the standard of care for psychological testing, opining with respect to the psychological tests performed on the patients A, B, C, D, and G that were the subject of the indictments; they deemed the testing procedures manifestly substandard. Two physicians, one a psychiatrist and one a specialist in addiction medicine, also testified as to the standard of care for prescribing benzodiazepines to patients with substance abuse and mental health issues, directing themselves specifically to the indicted prescriptions Kobrin wrote for the patients A, B, C, D, F, and G. In each instance, the experts opined that the conduct fell below the relevant standard of care. The treatment records of the six patients were among the documents in evidence and formed a basis for the opinions rendered.

Acting on defense motions for required findings of not guilty, the judge disposed of approximately one-third of the sixty-four counts. Forty-three counts went to the jury.⁴

The jury acquitted Kobrin of all twenty-six counts of Medicaid fraud arising from the alleged kickback arrangement with the tenant psychologists. They also acquitted him of the Medicaid fraud counts for ordering psychological testing of Patients A and C, and Trooper D'Amore, and the illegal prescribing counts for prescribing benzodiazepines to Patients A, B, and C. The jury returned guilty verdicts for prescribing a benzodiazepine to Patient D on January 26, 1996, for ordering psychological testing of Patient D that took place on December 22, 1995, and for ordering such testing of Patient G as took place on April 14, 1995.

On appeal, Kobrin claims error in several respects, chief among them that the evidence was insufficient to sustain any of the three convictions.⁵ As to the illegal prescribing conviction, Kobrin maintains that the Commonwealth did not adduce sufficient evidence to prove...