People v. McDonald

• Decision Date: 30 April 1996
• Citation: 88 N.Y.2d 281,667 N.E.2d 320,644 N.Y.S.2d 670
• Parties: , 667 N.E.2d 320 The PEOPLE of the State of New York, Respondent, v. Robert McDONALD, Appellant. The PEOPLE of the State of New York, Respondent, v. Emilia STROGOV, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 670

644 N.Y.S.2d 670

88 N.Y.2d 281, 667 N.E.2d 320

The PEOPLE of the State of New York, Respondent, v. Robert McDONALD, Appellant.

The PEOPLE of the State of New York, Respondent, v. Emilia STROGOV, Appellant.

Court of Appeals of New York.

April 30, 1996.

[88 N.Y.2d 282] [667 N.E.2d 321] T. Kevin Murtha & Associates, P.C., Roslyn (Joseph Madsen of counsel), for appellant in the first above-entitled action.

[88 N.Y.2d 283] Dennis C. Vacco, Attorney General, New York City (Arthur G. Weinstein and Bonnie H. Stein of counsel), for respondent in the first above-entitled action.

[88 N.Y.2d 284] Vivian Shevitz, Mt. Kisco, Carol E. Gette and Jane Simkin Smith for appellant in the second above-entitled action.

Dennis C. Vacco, Attorney General, New York City (Arthur G. Weinstein, Donald H. Zuckerman and Michael R. Berlowitz of counsel), for respondent in the second above-entitled action.

[88 N.Y.2d 285] Feldman & Kieffer, LLP, Buffalo (Andrew Feldman of counsel), for New York State Podiatric Medicine Association, amicus curiae in the first and second above-entitled actions.

OPINION OF THE COURT

LEVINE, Justice.

Following a jury trial, defendant McDonald, a podiatrist enrolled as a participating provider in the New York Medical Assistance Program, was convicted of one count of second degree grand larceny (Penal Law § 155.40) and six counts of offering a false instrument for filing in the first degree (Penal Law § 175.35). In an unrelated bench trial, defendant Strogov, also a participating podiatrist, was convicted of second degree grand larceny. The basis for these convictions was defendants' submission of claims to the Medicaid program for custom-made orthotics "cast and fabricated" to the patients' feet with the knowledge that they had not in fact provided such appliances to these patients. The Appellate Division affirmed each conviction, holding that the language of the applicable Medicaid billing code unambiguously provided notice that the creation of a three-dimensional cast of the patient's feet was required to seek reimbursement under this code (People v. McDonald, 215 A.D.2d 504, 626 N.Y.S.2d 249; People v. Strogov, 216 A.D.2d 424, 628 N.Y.S.2d 721). We agree and, because none of the remaining assignments of error requires reversal, we now affirm.

The New York Medical Assistance Program provides eligible persons with financial assistance for medical care and treatment. Participating physicians submit claims for reimbursement of services provided to program recipients according to the fee schedule contained in the local Department of Social Services Medicaid Provider Manual. The local provider manual must be consistent with the medical services and reimbursement caps prescribed by the State Department of Social Services (see, 18 NYCRR 538.1). At issue in these appeals is the Kings County billing code 90473 (item P602 in the State podiatry fee schedule) which provides:

"Foot mold, balance inlay support (casting and fabrication) per pair, to include all necessary fittings and adjustments."

The maximum reimbursable rate under this billing code is $46.

Defendants were prosecuted for larcenies emanating from the submission of claims under billing code 90473 for orthotics they dispensed without making a cast or mold of the patient's feet. According to the trial evidence, the orthotics that defendants McDonald and Strogov billed under this code were ordered by sending either a tracing of the outline of the patient's feet or a pressure imprint obtained by coating the feet with a solution that interacted with specialized paper to indicate the patient's weight-bearing and pressure areas, with or without additional prescriptive information, to a laboratory that provided prefabricated stock orthotics.

Defendants do not refute that these two-dimensional measurement techniques were used. They argue instead that the billing code phrase "casting and fabrication" is...