Accountant Tells Tale of New Hampshire Dentist Charged with Medicaid Fraud over $781

Texas Medicaid fraudTDMR is republishing this very descriptive and apt blog post.

A Senseless Fraud Prosecution Victimized Doctor And Patients

by Larry M. Elkin, CPA, CFP®

In the complicated world of medical and dental care, billing mistakes happen. Add a complicated government program such as Medicaid, and they are practically inevitable.

Yet a New Hampshire dentist recently discovered that mistakes involving Medicaid are not just mistakes: According to the state attorney general’s office, they are always fraud.

Dr. Nicholas Marshall found himself facing over 200 charges  from the attorney general’s Medicaid Fraud Control Unit, some of which involved amounts as small as $5. According to the New Hampshire Union Leader, Marshall offered to refund the entire disputed amount of the alleged fraud, which came to $781, in order to make the indictments go away. Yet prosecutors insisted that wasn’t good enough; Marshall also needed to plead guilty, which he refused to do.

The case went to trial, where a jury found Marshall innocent of all 45 felony counts that had not been previously dropped. The foreman later described  most of the jurors as “appalled at the state for bringing [the] case.” New Hampshire Attorney General Joseph Foster acknowledged that the law that classifies every case of alleged Medicaid fraud, regardless of the amount, as a felony may need to be changed. Yet Foster defended prosecutors who pursued Marshall, saying that they felt the indictments were necessary.

This is not the first time prosecutors have overstepped the bounds of law, reason or ordinary sense, nor the first time I have written about it. There are plenty of examples. While the conduct of New Hampshire prosecutors does not rise to the level of a potential crime – they did not, for example, withhold exculpatory evidence – that does not mean there is nothing more to be done about it.

At a minimum, this incident ought to warrant a state bar investigation for subjecting Marshall to a felony fraud prosecution, exposing him to decades of jail time (the Concord Monitor  reported he could have technically faced over 1,300 years in prison had all the charges remained in effect), pressuring him to cop a plea to a crime he clearly did not commit, and abusing a poorly drafted statute to create a “felony” out of a billing dispute worth less than $800. Marshall contends that the indictments all came without any warning, and has described the financial and emotional impact of the case.

“It’s indescribable, the emotional toll it takes on you,” he said. “They don’t call to say ‘Hey, we think you overcharged’ and ‘Repay us,’ they indict you.”

Throughout the process, Marshall’s attorney, Jim Moir, maintained that even if Medicaid was right to dispute the bills in question, a mistake in navigating the complexities of the Medicaid bureaucracy is not the same thing as fraud, which requires an intent to steal. While this seems obvious to any reasonable observer, logic eluded the prosecutors who pressed Marshall to plead guilty all the same.

Marshall has returned to his dental practice (after having been suspended while the bogus charges were pending), but he understandably no longer accepts Medicaid patients. This goes to show that the dentist is not the only victim of this ill-founded prosecution. It is not easy, even in large cities, to find dentists who are accepting new Medicaid patients. In small-townish New Hampshire it can be even harder, so the patients Marshall no longer accepts may have to wait longer for care, or do without.

State and federal prosecutors don’t seem inclined to stop chasing headlines any time soon, however. While juries can still make sure such efforts don’t put people in jail wrongfully, that outcome is only possible after large expenditures of time and money.

New Hampshire Gov. Maggie Hassan, a Democrat who expanded Medicaid in the state, also “believes that we must be vigilant about stopping fraud in any public program,” according to a statement delivered by her press secretary. When prosecutors interpret that belief as a mandate to go after perceived fraud – in any amount and without evidence of intent to defraud – we end up with absurd cases such as the one against Marshall.

If the legal profession cared about protecting the public as much as it cares about protecting its own members, the attorneys who brought this senseless case would find themselves in another line of work, at least for a suspension period, if not permanently. Future prosecutors might then exercise a little more of what they like to call “prosecutorial discretion.”

via A Senseless Fraud Prosecution Victimized Doctor And Patients « Palisades Hudson Financial Group.

3 Responses

  • This happened long ago.

    If you think for a moment that the fraud in Texas was anywhere near this minimal, your blind.

    Give me 30 minutes, maximum, to look over the records of any of these accused dentists, whom you say are innocent (Harlingen dental included) and I will find blatant fraud. Not only that, we can take the records to a completely independent and unbiased third party and they will say the same thing. As a matter of fact, 10 out of 10 reputable dentists would laugh at these clowns and what they are trying o pawn off as “needed dental care”. I am sure their mortgages and car notes needed it but not the teeth, nor children.

    All of you should be ashamed.

  • Government starts out with 202 charges against my father. (Stating no work was done for teeth billed or different work) Over the course of a year or so- my dad was able to show proof of or verify the work on all but 20. Prosecution changed it’s case three times, this took 3 years and no telling how much money… The amount in question on those 20 teeth was under $1000.
    Over and over witnesses for both sides said it was possible that over the years, the prep work for these shallow fillings could have worn away or come out. Every person who worked for him swore under oath that he did everything he wrote down or billed for. They had all worked for him for an average of 15 years.
    The prosecution, instead of looking at these 20 teeth (out of 10,000 teeth treated in this four year period) kept accusing him of robbing the government of millions upon millions upon millions because of the extrapolation process! He was supposed to be defending himself against 20 teeth for under $1000 but found himself being accused of never filling or committing fraud on every tooth he billed for over 4 years? Was it fair? NO! Did we feel our lawyers dropped the ball? YES? Does he deserve 70 months in Jail?! NO!
    Should he have had an opportunity to present stuff on those 20 teeth and if unable to prove the work was done (4-5 years later!!!)
    Maybe pay that part back instead of being labeled a fraudster, felon?!
    What have we come to?

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