People v. Rubin
| Decision Date | 12 April 1984 |
| Citation | 474 N.Y.S.2d 348,101 A.D.2d 71 |
| Parties | PEOPLE of the State of New York, Respondent, v. Harold P. RUBIN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, Herzfeld & Rubin, P.C., New York City, for appellant (Paul Cambria, Buffalo, of counsel).
Robert Abrams, Atty. Gen., Albany, for respondent (Robert Dublirer, Sp. Asst. Atty. Gen., New York City, of counsel).
Before HANCOCK, J.P., and DENMAN, BOOMER, O'DONNELL and SCHNEPP, JJ.
Following a nine-week trial defendant, a licensed podiatrist and an authorized Medicaid provider, was convicted of one count of grand larceny in the second degree (Penal Law, § 155.35) and 14 counts of offering a false instrument for filing in the first degree (Penal Law, § 175.35). All of the charges stemmed from accusations that he filed claims for care, services and supplies which he did not provide to his Medicaid patients. In our view, the principal issues before us relate to the theory of the grand larceny prosecution as embodied in the indictment, the expert testimony offered supporting that theory, and the court's explanation of that theory to the jury in its charge. In addition, defendant's claim that he was denied a fair trial because of prosecutorial misconduct merits scrutiny. For the reasons which follow we conclude that the judgment of conviction should be modified by reversing defendant's grand larceny conviction.
The theory of the prosecution was not complex. Simply stated, the indictment charged defendant with grand larceny in the second degree committed during the years 1980 and 1981 by his billing the Erie County Department of Social Services in excess of $1,500 for care, services and supplies which he did not provide. He was also charged with the 14 counts of offering a false instrument for filing in the first degree by reason of the invoices he submitted for the services and foot appliances which he certified that he provided to 13 patients during this period. In four of these counts defendant was accused of invoicing for services which were not performed, in six of casting and fabricating foot appliances which were not furnished and in the remaining four of making false representations that no money or other consideration was received from patients or other sources.
At trial 29 former patients of defendant testified concerning the medical treatment which they received. Received as exhibits were the invoices submitted by defendant for the podiatric services and the foot appliances which he claims he provided to these patients. Also received was a fee schedule detailing the amounts allowable to podiatrists for various procedures performed in the treatment of Medicaid patients. Discrepancies appear when the testimony of the patients as to the treatment they received and the schedule of permissible charges for that treatment are compared with the invoices submitted by defendant. In some instances defendant charged for visits which the patients testified they did not make, and for treatment which they claimed they did not receive. In addition, the prosecutor contended at trial that in accordance with the fee schedule defendant was entitled to charge only the sum of $13.80 for each of the foot appliances which he furnished many of his patients, rather than the sum of $46 which he claimed in his invoices, and further that he was not entitled to claim persons as Medicaid patients who personally paid him cash for any of the treatments which they received.
To supplement the proof provided by the fee schedule and the patients' testimony the prosecutor called Dr. David Davidson, former podiatry consultant to the Erie County Department of Social Services, as an expert on Medicaid billing practices. Based on a series of hypothetical questions formulated by the prosecutor regarding each of the 29 patients, which questions assumed the veracity and accuracy of their respective testimony, Dr. Davidson gave his opinion as to the amounts properly chargeable by and reimbursable to defendant and the amount of the "overbilling" in each instance. 1 After the last hypothetical question and answer, Dr. Davidson testified that the "overbilling" totaled the sum of $2,203.70. At least $354.20 of the amount invoiced was described by Dr. Davidson as nonreimbursable because defendant did not make a plaster cast of the feet of patients who were prescribed foot appliances. Another $805.50 of this amount was disallowed because defendant received cash payments from certain of the patients. However, the trial court later found that disallowing reimbursement to defendant under the Medicaid fee schedules for these reasons is improper. We consider these items separately.
Under the Medicaid fee schedule a "foot mold, balance, inlay support (e.g., pedograph, phenophthalein)" is a "P602" appliance known as an orthotic which is billable in the amount of $46 which sum includes "necessary fittings and adjustments". A "dynamic functional or acrylic appliance" is classified as a "P602B" appliance and is billable in the amount of $13.80. The principal distinction between the two appliances is that while the P602 orthotic is a rigid or semirigid three-dimensional appliance designed to "change the way the foot functions or bears weight", a P602B appliance, such as a "molopad", is made of impressionable material and does not redistribute weight. At least 10 patients testified that they received foot appliances from defendant and one patient testified that although she was measured for an appliance and contacted to pick it up, she did not do so.
There was no dispute at trial that P602 orthotics, rather than P602B type appliances, were made for each of these patients. The dispute centered upon whether defendant was entitled to claim reimbursement for these appliances at the P602 rate of $46 when he did not make, for measurement purposes, a plaster cast of his patients' feet before ordering the appliances from the manufacturer, Saperston Labs. Dr. Davidson testified that if such a cast is not made, the reimbursable rate is $13.80, i.e., the rate charged for P602B type appliances, and not $46, i.e., the rate charged for P602 orthotics. He conceded, however, that P602 orthotics may be made not only from plaster casts, but also from "pedographs", and that doctors are paid for the appliance that they provide and not for the casting of their patients' feet.
A pedograph is a print of the weight-bearing surface of the foot which is made by standing on chemically sensitized paper after a bicarbonate of soda solution has been placed on the foot (Dorland's Illustrated Medical Dictionary [24th ed, 1965] ). The paper changes color when the solution contacts it. Dr. Davidson described the pedograph as a "graphic representation of the foot" and said that "the area of increased weight-bearing [shows] up darker on the paper than the area that does not bear such weight."
There was proof adduced that although defendant prepared a tracing of his patients' feet on pedograph paper supplied by Saperston Labs and made certain measurements of their feet, he did not place a bicarbonate of soda solution on their feet before they stood on the paper. Thus, defendant made no graphic representation of his patients' feet on the pedograph paper which he submitted to Saperston Labs. Nonetheless, the defendant's tracings and measurements were utilized by Saperston Labs to make orthotics for these patients. The orthotics thus made were not P602B impressionable appliances, but semirigid P602 orthotics.
Eventually the court rejected Dr. Davidson's interpretation of the fee schedule and charged the jury that "the fee schedules do not require a provider to make an actual mold of a part of the human body * * * the fabrication of the appliance alone, regardless of how the measurements therefor were taken * * * was sufficient to entitle the provider to be, upon his making available to the recipient his services for any necessary fittings and adjustments, to be paid therefor at the rate provided in the fee schedule." Thus, under the law of the case as it was charged to the jury it was irrelevant on the question of compensation under the fee schedule whether or not defendant made castings of his patients' feet when he measured them for orthotics.
The $805.50 was disallowed by Dr. Davidson because of his opinion that once a podiatrist receives cash from a patient, "he has no right to bill Medicaid anything". The "Medicaid Guidelines Handbook" in evidence, however, only prohibits the acceptance of "additional...
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