Commonwealth v. Stirlacci

• Court: Massachusetts Supreme Judicial Court
• Decided: January 8, 2020
• Docket: SJC 12735
• Status: Published

Opinion

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SJC-12735

COMMONWEALTH vs. FRANK STIRLACCI (and 135 companion cases1).

Hampden. September 5, 2019. - January 8, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

Controlled Substances. Doctor, Controlled substances, Prescription. Health Care.

Indictments found and returned in the Superior Court Department on January 26, 2017.

Motions to dismiss were heard by Mark D. Mason, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Benjamin Shorey, Assistant District Attorney, for the Commonwealth. A.J. O'Donald III for Frank Stirlacci. Roy H. Anderson for Jessica Miller.

1 Sixty-seven against Frank Stirlacci and sixty-eight against Jessica Miller. 2

LENK, J. In 2017, a Hampden County grand jury indicted Dr.

Frank Stirlacci and his office manager, Jessica Miller, for

numerous violations of the Controlled Substances Act, and for

submitting false health care claims to insurance providers. The

charges under the Controlled Substances Act included twenty-six

counts each of improper prescribing, G. L. c. 94C, § 19 (a), and

twenty counts each of uttering a false prescription, G. L.

c. 94C, § 33 (b). The defendants also were indicted on twenty-

two charges each of submitting a false health care claim, G. L.

c. 175H, § 2.

A Superior Court judge subsequently dismissed the

indictments for improper prescribing and uttering false

prescriptions. Because of insufficient evidence, the judge also

expressed an intent to dismiss six of the twenty-two indictments

against each defendant for submitting false health care claims.

The Commonwealth appealed from the dismissals pursuant to Mass.

R. Crim. P. 15 (a) (1), as amended, 476 Mass. 1501 (2017).

For the reasons that follow, we conclude that there was

sufficient evidence to indict Stirlacci on twenty-six counts of

improper prescribing, but that Miller's status as a

nonpractitioner precludes her indictment under that provision.

We conclude further that there was insufficient evidence to

indict either defendant for uttering false prescriptions.

Finally, there was sufficient evidence to indict both defendants 3

on twenty of the twenty-two counts against each defendant of

submitting false health care claims, in violation of G. L.

1. Background. We recite the facts as the grand jury

could have found them, reserving some details for subsequent

discussion. The Commonwealth's investigation of Stirlacci, a

physician who operated a solo practice with offices in Agawam

and Springfield,2 stemmed from a number of prescriptions issued

between April 17, 2015, and May 11, 2015, while he was

incarcerated in Louisville, Kentucky.3 Of particular concern to

investigators were fifteen prescriptions for hydrocodone, six

prescriptions for oxycodone, two prescriptions for fentanyl, and

three prescriptions for methadone.4

As part of its investigation, the Commonwealth obtained

recordings of Stirlacci's telephone calls made from the

Louisville facility where he was being held. In these

conversations, he spoke of his inability to raise money to

2 Between the two offices, Stirlacci apparently treated approximately 3,000 patients.

3 Stirlacci was held in contempt of court in Kentucky for being delinquent on spousal support payments. He was incarcerated from April 17, 2015, to May 11, 2015.

4 Although it appears from the record that additional prescriptions may have been issued, during the period that Stirlacci was being held, for substances other than narcotics, these twenty-six prescriptions were the focus of the indictments. 4

satisfy his alimony obligations if he remained incarcerated and

unable to see patients. In addition, he expressed concern that

he needed to maintain sufficient cash flow to keep his practice

open, that he was abandoning his patients, and that he could

incur liability if a patient suffered an injury as a result of

not being able to obtain necessary medication.

When Stirlacci was on vacation or otherwise out of the

office, he typically would leave pre-signed prescription forms

for Miller, who was not a medical professional, to use for

patients who came in for prescription renewals. While Stirlacci

was in jail, he instructed Miller that, if a patient came in

seeking a renewal, she should issue it and also submit a claim

to the patient's insurance company. Miller sought to clarify

whether she could submit claims for visits where Stirlacci would

not have seen the patient. Stirlacci told her that even if he

did not see the patient, the office was "doing work" and should

submit a claim. He also explained that such claims would be

"down charg[ed]" because the patient had not seen a doctor.5

Subsequent conversations between Miller and Stirlacci

reveal Stirlacci's mounting frustration with his inability to

5 The grand jury were not provided with a definition of "down charging," but could have inferred that the phrase implied that a medical office would bill insurance providers at a lower rate if the doctor did not actually see the patient. 5

run his practice, which he worried would "implode" in his

absence. The conversations also indicate that a nurse

practitioner employed by Stirlacci6 raised concerns to Miller

about the propriety of Miller issuing renewal prescriptions. In

addition, the nurse practitioner objected to Miller billing for

patients who had not been examined by Stirlacci on that date.

Stirlacci reassured Miller that she knew the proper standards

for billing, and she should do what she knew was "right." He

also expressed frustration with the nurse practitioner's

unwillingness to recognize that small private practices could

not afford to follow every regulation if they were going to be

successful businesses and remain flexible enough to accommodate

patients.

In January of 2017, the Commonwealth convened a grand jury

to present the results of its investigation. The evidence

submitted to the grand jury included a complete transcript of

Stirlacci's telephone calls with Miller and other associates

while he was incarcerated in Kentucky. It also included records

for twenty-two patients who either were issued prescriptions, or

whose insurance providers were billed for office visits, on

dates when Stirlacci was in Kentucky and Miller was working in

6 The nurse practitioner ultimately left the practice on May 7, 2015, before Stirlacci returned from Kentucky after May 11, 2015. 6

the office. These records included copies of twenty-six

prescriptions for narcotics, all issued on dates when Stirlacci

was in Kentucky and Miller was at the office.7 The records also

included copies of billing entries showing that each patient's

insurance provider had been billed for an office visit on a date

when Stirlacci was in Kentucky. In some instances, the records

also included documents from the patients' insurance companies

that referenced the reimbursement claims, thus indicating that a

claim had been made.

The Commonwealth's sole witness was a State police trooper

who had worked on the investigation. Although the trooper did

not provide a detailed explanation of medical billing practices

or what the specific billing codes in the patient records meant,

he stated that the records showed that the patients' insurance

providers were billed for the patients having seen Stirlacci.

The trooper further explained that Stirlacci was not directly

issuing the prescriptions from jail, but that Miller was filling

out the prescriptions using blank prescription forms that had

been pre-signed by Stirlacci. The trooper also confirmed that

all the prescriptions were renewals for ongoing treatment.

7 As discussed supra, fifteen prescriptions were for hydrocodone, six were for oxycodone, two were for fentanyl, and three were for methadone. Stirlacci's case load was approximately 3,000 patients between his two offices. 7

The trooper read two excerpts from the transcripts of

Stirlacci's telephone calls to Miller while he was incarcerated.

In the first conversation, Stirlacci directed Miller to issue

prescriptions and submit billing charges for the times when

patients came to the office to pick up (renewal) prescriptions.8

In the second excerpt, Stirlacci and Miller discussed the nurse

practitioner's concerns with this arrangement.9 The trooper also

testified that he had interviewed that nurse practitioner, and

read the grand jury her written statement. Her statement

8 The first excerpt stated in part:

Miller: "What about people that are picking up scripts, can I put in charges for them?"

Stirlacci: "Yes"

Miller: "Even though they weren't seen?"

Stirlacci: "Yes. Put in the 99212. . . . For the date that they picked them up, because they didn't see the doctor, so it's down charged. So, it's a 92 or a 93. . . . Anything and everything you can get in, get in."

9 The second excerpt reads as follows:

Miller (summarizing a conversation she had had with the nurse practitioner)]: "Doc is the one that makes any decisions. He told me to write scripts, so I'm writing scripts."

Stirlacci: "Right. So what does she [not] like? The patients were seen, they came into the office."

Miller: "She doesn't like [that we are] writing scripts for patients and then expecting her to do the office thing." 8

provided an account of the manner in which Stirlacci's medical

practice operated in his absence. In addition, the nurse

practitioner said that the signatures on the prescription forms

issued in Stirlacci's absence were in Stirlacci's handwriting,

but that the details of the prescriptions were in Miller's. The

nurse practitioner mentioned requests she had received from

Miller and from the Springfield office manager (Miller only

managed the Agawam office) to complete patient notes for

patients she herself had not seen; she refused these requests.

Stirlacci and Miller each were indicted on twenty-six

charges of improper prescribing, G. L. c. 94C, § 19 (a); twenty

charges of uttering false prescriptions, G. L. c. 94C, § 33 (b);

and twenty-two charges of submitting false health care claims,

G. L. c. 175H, § 2. After a hearing on the defendants' joint

motion to dismiss for insufficient evidence to establish

probable cause, the judge dismissed the indictments for improper

prescriptions and uttering false prescriptions, and further

concluded that there was insufficient evidence as to six of the

twenty-two false health care claims.10 The Commonwealth appealed

10In order to clarify which specific counts had insufficient evidence, the judge ordered the Commonwealth to submit a bill of particulars. This was necessary because the individual indictments did not identify the patient to whom they pertained. As further proceedings in the Superior Court were stayed pending this appeal, these counts have yet to be dismissed. 9

to the Appeals Court, and we transferred the consolidated

appeals to this court on our own motion.

2. Discussion. The Commonwealth contends that the

evidence indicating that Miller provided pre-signed

prescriptions to patients when Stirlacci was not present

established probable cause either that the prescriptions lacked

a legitimate medical purpose or that they were issued outside

the usual course of professional practice.11 The Commonwealth

also maintains that evidence that Miller filled out

prescriptions which had been pre-signed by Stirlacci established

probable cause that both defendants uttered false prescriptions,

and that submitting billing claims for these visits established

probable cause that both defendants submitted false health care

claims.

a. Standard of review. Although, in general, a "court

will not inquire into the competency or sufficiency of the

evidence before the grand jury" (citation omitted), Commonwealth

v. Robinson, 373 Mass. 591, 592 (1977), a "grand jury must hear

sufficient evidence to establish the identity of the

accused . . . and probable cause to arrest him [or her]" for the

11As discussed in part 2.a, infra, the Commonwealth contends that it is sufficient to establish probable cause that either the prescriptions lacked a legitimate medical purpose or the prescriptions were issued outside the usual course of practice. 10

crime charged, Commonwealth v. McCarthy, 385 Mass. 160, 163

(1982). A grand jury may indict when presented with sufficient

evidence of "each of the . . . elements" of the charged offense.

Commonwealth v. Moran, 453 Mass. 880, 884 (2009).

Probable cause is a "considerably less exacting" standard

than that required to support a conviction at trial.

Commonwealth v. O'Dell, 392 Mass. 445, 451 (1984). It requires

"sufficient facts to warrant a person of reasonable caution in

believing that an offense has been committed," not proof beyond

a reasonable doubt. Commonwealth v. Levesque, 436 Mass. 443,

447 (2002). An appellate court reviews the evidence underlying

a grand jury indictment in the light most favorable to the

Commonwealth. See Commonwealth v. Catalina, 407 Mass. 779, 781

(1990). In considering a judge's decision to dismiss for lack

of sufficient evidence, we do not defer to the judge's factual

findings or legal conclusions. See Commonwealth v. Ilya I., 470

Mass. 625, 627 (2015).

b. Improper prescribing in violation of G. L. c. 94C,

§ 19 (a). The Controlled Substances Act mandates that valid

prescriptions for controlled substances "be issued for a

legitimate medical purpose by a practitioner acting in the usual

course of his [or her] professional practice." G. L. c. 94C,

§ 19 (a). Practitioners who issue invalid prescriptions are

subject to criminal penalties. Id. To determine whether the 11

indictments should have been dismissed, we must (a) establish

the standard for "improper prescribing" by defining the

relationship between "legitimate medical purpose" and "usual

course of professional practice"; (b) assess whether the

Commonwealth presented sufficient evidence to establish probable

cause that there was improper prescribing by a practitioner, and

(c) decide whether the explicit reference to practitioners in

the Controlled Substances Act precludes liability for a

nonpractitioner such as Miller. We conclude that the

Commonwealth has met its burden with respect to Stirlacci, but

that G. L. c. 94C, § 19 (a), does not impose liability on

nonpractitioners such as Miller.

i. Standard for "improper prescribing." "[A] statute must

be interpreted according to the intent of the Legislature

ascertained from all its words construed by the ordinary and

approved usage of the language" (citation omitted). Seideman v.

Newton, 452 Mass. 472, 477 (2008). In order to effectuate the

intent of the Legislature, we consider the text "in connection

with the cause of its enactment . . . and the main object to be

accomplished." (citation omitted). Id. We discern the intent

"from all [of a statute's] parts and from the subject matter to

which it relates." Id. We also consider a statute within the

context of the broader statutory framework, including prior

versions of the same statute and similar enactments. See 12

Bellalta v. Zoning Bd. of Appeals of Brookline, 481 Mass. 372,

378 (2019).

A. Defining "legitimate medical purpose" and "usual course

of professional practice." General Laws c. 94C, § 19 (a),

provides that a valid prescription is one issued "for a

legitimate medical purpose by a practitioner acting in the usual

§ 19 (a). Articulating a standard for improper prescribing

requires us to define these two concepts and to determine their

respective roles in distinguishing valid prescribing from

criminal conduct.

The Commonwealth argues that it is sufficient to prove

either that a prescription lacked a legitimate medical purpose

or that it was issued outside the usual course of professional

practice. In the Commonwealth's view, G. L. c. 94C, § 19 (a),

imposes two distinct requirements for a valid prescription:

that it (1) have a "legitimate medical purpose" and (2) be

issued in the "usual course of professional practice." Thus,

the Commonwealth argues, a prescription is improper if the

Commonwealth can prove that a practitioner failed to meet just

one of these requirements.

We are not convinced by this argument. General Laws

c. 94C, § 19 (a), provides that a valid prescription is one

issued "for a legitimate medical purpose by a practitioner 13

acting in the usual course of his [or her] professional

practice." To read "legitimate medical purpose" and "usual

course of professional practice" as two distinct requirements

would require inserting the word "and" between the two phrases.

We "refrain from reading into the statute . . . words that the

Legislature . . . chose not to include" (quotation and citation

omitted). Essex Regional Retirement Bd. v. Swallow, 481 Mass.

241, 252 (2019). Moreover, for the reasons that follow, we

conclude that "legitimate medical purpose" and "usual course of

professional practice" are best read as a single, holistic

standard.

Because neither "legitimate medical purpose" nor "usual

course of professional practice" are defined anywhere in the

statute, we turn first to the ordinary usage of this language.

"Purpose" implies one's goal or intent, Black's Law Dictionary

1493 (11th ed. 2019), while "legitimate" implies something that

is "genuine" or "lawful," see id. at 1084. Accordingly,

"legitimate medical purpose" may be read as a genuine or lawful

medical intent or goal. "Usual" implies "ordinary" or

"customary." See id. at 1857. "Course" implies a "routine."

See, e.g., id. at 443 (defining "course of business" as "[t]he

normal routine of managing a trade or business" [emphasis

added]). "Professional" means "pertaining to one's profession,"

here, the medical profession. See Dorland's Illustrated Medical 14

Dictionary 1514 (30th ed. 2003). The "usual course of

professional practice" thus may be read to mean the routines

customarily expected in the context of the medical profession.

See United States v. Smith, 573 F.3d 639, 647-648 (8th Cir.

2009) ("usual course of professional practice" refers to

"generally recognized and accepted medical practices" [citation

omitted]).

From the plain language, then, we can infer that the

relevant factors when determining if a practitioner has engaged

in improper prescribing are whether the practitioner's intent is

not related to a genuine medical objective, and the degree to

which the practitioner's conduct deviates from "generally

recognized and accepted medical practices." See Smith, 573 F.3d

at 647. What remains unclear is the precise relationship

between these factors. We therefore turn from the text to a

broader consideration of the objectives of the statute.

B. Purpose of G. L. c. 94C, § 19 (a). When crafting the

Controlled Substances Act, the Legislature recognized the need

to strike a careful balance between allowing medical

practitioners to prescribe narcotics where appropriate as

medical treatment and preventing the same practitioners from

abusing this power to promote the unlawful distribution of these

drugs. By its terms, G. L. c. 94C, § 19 (a), both serves to

create "an exemption from criminal liability" for practitioners 15

who issue proper prescriptions and a "gateway to liability" that

"makes it possible to prosecute physicians" who issue improper

prescriptions. See Commonwealth v. Brown, 456 Mass. 708, 717-

718 (2010). This fundamental legislative intent can be traced

to previous drug laws in the Commonwealth, which use similar

language and reflect a concern with ensuring that medical

professionals do not use their prescribing authority to evade

narcotics controls.12

To preserve this careful balance, courts also have held

that the prohibition on improper prescribing does not establish

criminal liability merely for medical malpractice. "It is not

enough to show that the physician did not comply with accepted

medical practice." Commonwealth v. Kobrin, 72 Mass. App. Ct

589, 596 (2008). In Commonwealth v. Comins, 371 Mass. 222, 232

(1976), cert. denied, 430 U.S. 946 (1977), we observed that

"mere malpractice in the prescribing of drugs has not been made

a crime," and that the physician must not have "intend[ed] to

achieve a legitimate medical objective."

12For example, G. L. c. 94, § 200, as appearing in St. 1957, c. 660, provided, "A physician . . . in good faith and in the course of his [or her] professional practice only, for the alleviation of pain and suffering or for the treatment or alleviation of disease may prescribe . . . narcotic drugs." Similarly, G. L. c. 94, § 199E, as appearing in St. 1957, c. 660, exempted certain uses of narcotic drugs so long as they were "administered, dispensed and sold in good faith as a medicine, and not for the purpose of evading the provisions of the narcotic drugs law." 16

This approach is consistent with positions adopted by the

Federal courts in interpreting the Comprehensive Drug Abuse

Prevention and Control Act of 1970, 21 U.S.C. §§ 801 et seq., on

which the Commonwealth's Controlled Substances Act is modeled.

See Brown, 456 Mass. at 716. Under the Federal statute, "courts

have consistently concluded that it is proper to instruct juries

that a doctor should not be held criminally liable if the doctor

acted in good faith when treating his [or her] patients."

United States v. Hurwitz, 459 F.3d 463, 477 (4th Cir. 2006).

"[T]he government must prove . . . that the practitioner acted

with intent to distribute the drugs and with intent to

distribute them outside the course of professional practice."

United States v. Feingold, 454 F.3d 1001, 1008 (9th Cir.), cert.

denied, 549 U.S. 1067 (2006).13

C. Standard for improper prescribing under G. L. c. 94C,

§ 19 (a). The distinguishing factor between proper and improper

prescribing, or between mere malpractice and criminal conduct,

is the practitioner's intent. The defining feature of a valid

13The emphasis on intentional action in United States v. Feingold, 454 F.3d 1001, 1007-1008 (9th Cir.), cert. denied, 549 U.S. 1067 (2006), perhaps reflects the Federal statute's explicit prohibition of "knowingly or intentionally" dispensing a controlled substance, 21 U.S.C. § 841(a)(1), language not included in G. L. c. 94C, § 19 (a). Because we interpret G. L. c. 94C, § 19 (a), to require the Commonwealth to prove that the accused practitioner acted without a legitimate medical objective, however, the requirement that the Commonwealth prove that the practitioner acted with intention is implied. 17

prescription is that it is issued for a legitimate medical

purpose. This means that its issuance is the product of "an

honest exercise of professional judgment as to a patient's

medical needs . . . in accordance with what [the practitioner]

reasonably believe[s] to be proper medical practice" (citation

omitted). United States v. Volkman, 797 F.3d 377, 387-388 (6th

Cir.), cert. denied, 136 S. Ct. 348 (2015).

Read together, "legitimate medical purpose" and "usual

course of professional practice" capture what separates proper

prescribing -- including erroneous prescribing that might

constitute medical malpractice -- from improper prescribing.

The two statutory phrases are not separate elements but, rather,

mutually reinforcing concepts. If a prescription lacks a

"legitimate medical purpose," it has been issued outside the

"usual course of professional practice." See United States v.

Nelson, 383 F.3d 1227, 1231 (10th Cir. 2004) (no distinction

between "usual course of professional practice" and "legitimate

medical purpose" in Comprehensive Drug Abuse Prevention and

Control Act of 1970 and its implementing regulations).

Moreover, if a practitioner issues a prescription absent

any effort to follow the basic routines associated with "the

usual course of professional practice," this can indicate that a

prescription was not intended for genuine medical treatment.

See Comins, 371 Mass. at 232-233 (physician's failure to conduct 18

any medical examination prior to issuing prescriptions supported

inference that physician acted without legitimate medical

purpose).14

In sum, we hold that a practitioner may be found guilty of

improper prescribing, in violation of G. L. c. 94C, § 19 (a),

where the Commonwealth can establish that the practitioner

issued a prescription for a controlled substance for a purpose

other than genuine medical treatment. A prescription is not

issued for genuine medical treatment where a practitioner fails

to exercise medical judgment in a manner consistent with the

basic routines associated with such medical treatment. Because

mere malpractice does not constitute improper prescribing, a

practitioner who errs despite a good faith effort to diagnose

and treat a patient has not violated the statute.

ii. Probable cause to indict a practitioner for improper

prescribing. We turn to whether there was sufficient evidence

here to sustain the indictments for improper prescribing. As

discussed supra, the Commonwealth must establish probable cause

that (1) a practitioner (2) issued a prescription for a

controlled substance (3) for a purpose other than genuine

14For example, in Comins, 371 Mass. at 229-230, 232-233, experts testified that the defendant's decisions to prescribe drugs requested by patients, or to prescribe drugs without ever examining the patient, were contrary to accepted medical practice and bolstered the conclusion that the defendant lacked a legitimate medical purpose in issuing those prescriptions. 19

medical treatment. We first determine whether there was

probable cause to indict Stirlacci. As there was no dispute

that Stirlacci is a practitioner, or that the twenty-six

prescriptions at issue were for controlled substances, the only

question is whether there was probable cause that the

prescriptions were issued for a purpose other than genuine

medical treatment. We conclude that there was, and thus that

there was sufficient evidence to indict.15

Viewing the evidence presented to the grand jury in the

light most favorable to the Commonwealth, we consider what the

grand jury could have found from the entirety of Stirlacci's

transcripts, the patient records, and the State police trooper's

testimony.16 From the evidence the Commonwealth put before them,

15We nonetheless note, as did the Superior Court judge, that the evidence presented to date, taken as true, indicates far less egregious conduct than that alleged in prior cases enforcing our narcotics laws against physicians. Compare Commonwealth v. Pike, 430 Mass. 317, 321 (1999) (defendant stated that he was "local drug pusher"); Comins, 371 Mass. at 229 (defendant prescribed drugs at patient's request despite patient's statement that patient suffered from substance abuse, and defendant issued prescriptions without ever conducting medical examination of patient).

16The judge sought guidance from the Board of Registration in Medicine's prescribing practices policy and guidelines, which enumerate indicators that a prescription may lack a legitimate medical purpose. Because the grand jury were not presented with these indicators, however, we decline to consider them in our analysis of whether the grand jury could have found probable cause on the evidence before them. 20

the grand jury reasonably could have inferred that Stirlacci,

while incarcerated, authorized Miller to issue renewal

prescriptions for existing patients, using pre-signed

prescription forms. The grand jury arguably also could have

inferred that one motive for doing so was to maintain cash

flow.17 Most significantly, the grand jury reasonably could have

inferred that Stirlacci did not know which specific patients

received renewal prescriptions from Miller.18

From these inferences, even absent expert testimony, the

grand jury could have found that Stirlacci issued prescriptions

without exercising individualized medical judgment at the time

when the renewals were issued. From this, the grand jury could

have concluded that Stirlacci issued prescriptions without first

ascertaining whether they remained appropriate courses of

treatment. This was sufficient to establish probable cause that

the prescriptions were not issued for a legitimate medical

purpose in the usual course of professional practice. Such a

conclusion is further bolstered by a plausible inference that

17Stirlacci told Miller to "get charges in because that brings cash flow." Stirlacci separately told the manager of his Springfield office to "just try to plug in as much as we can . . . the pipeline's got to flow."

18In one telephone call, Stirlacci said to Miller, "I don't know how many [prescriptions] you wrote today. I don't know how many [pre-signed prescription forms] you have left." 21

Stirlacci's reason for directing Miller to issue the

prescriptions was, at least in part,19 to maintain the viability

of his practice.20

iii. Nonpractitioner liability for improper prescribing

under G. L. c. 94C, § 19 (a). We next consider whether G. L.

c. 94C, § 19 (a), applies to nonpractitioners. We conclude that

it does not.

"The starting point of our analysis is the language of the

statute, 'the principal source of insight into Legislative

purpose.'" Simon v. State Examiners of Electricians, 395 Mass.

238, 242 (1985), quoting Commonwealth v. Lightfoot, 391 Mass.

718, 720 (1984). General Laws c. 94C, § 19 (a), imposes

liability on "practitioners." Chapter 94C includes an extensive

definition of "practitioner" that makes no reference to lay

19The telephone records also revealed Stirlacci's concerns about patient abandonment, and the possibility of liability should any patients suffer medical injury after not having been able to obtain their medicines. Many patients' records indicate multiple chronic diagnoses and nonopioid prescriptions to treat chronic conditions, such as high blood pressure.

20Of course, "having . . . a keen profit motive does not itself denude a physician of the intention to treat medically a patient's condition." Commonwealth v. Kobrin, 72 Mass. App. Ct. 589, 607 (2008). While a profit motive would not alone establish probable cause of improper prescribing, it can support such a finding when presented, as here, in conjunction with more direct evidence that a practitioner lacked a legitimate medical purpose. 22

persons employed by medical professionals.21 See G. L. c. 94C,

§ 1. Accordingly, Miller cannot be prosecuted directly as a

practitioner for improper prescribing.

We then consider whether Miller, acting as Stirlacci's

agent, could be prosecuted as an accessory. The Commonwealth

argues that Miller could be held liable if she provided aid to

Stirlacci with the shared intent to issue prescriptions in bad

faith. We construe G. L. c. 94C, § 19 (a), to preclude

prosecution of nonpractitioners as accessories. The statutory

language expressly places "responsibility for the proper

prescribing . . . of controlled substances . . . upon the

prescribing practitioner," and a "corresponding

responsibility . . . with the pharmacist who fills the

21 General Laws c. 94C, § 1, defines a "practitioner" as

"(a) A physician, dentist, veterinarian, podiatrist, scientific investigator, or other person registered to distribute, dispense, conduct research with respect to, or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research in the commonwealth;

"(b) A pharmacy, hospital, or other institution registered to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in the commonwealth.

"(c) An optometrist authorized by [G. L. c. 112, §§ 66 and 66B,] and registered pursuant to [§ 7 (h)] to utilize and prescribe therapeutic pharmaceutical agents in the course of professional practice in the commonwealth." 23

prescription." See G. L. c. 94C, § 19 (a). "Clear and

unambiguous language in a statute is conclusive as to

legislative intent." Massachusetts Insurers Insolvency Fund v.

Smith, 458 Mass. 561, 565 (2010). The statute clearly refers to

practitioners, and we see no reason to expand its reach. But

see United States v. Vamos, 797 F.2d 1146, 1153-1154 (2d Cir.

1986), cert. denied, 479 U.S. 1036 (1987) (affirming conviction

of physician's nurse and office manager for aiding and abetting

distribution of controlled substance, outside scope of medical

practice, under Federal controlled substances act).22

Interpreting G. L. c. 94C, § 19 (a), as a provision aimed

specifically at practitioners also is sensible because the

critical inquiry is whether the prescriptions were issued in

furtherance of genuine medical treatment. Because criminal

liability under G. L. c. 94C, § 19 (a), turns on the exercise of

medical judgment, the Legislature could not have intended to

evaluate the intentions of lay persons who lack the authority to

provide or authorize medical treatment. We must interpret the

provision "so as to render the legislation effective, consonant

with sound reason and common sense" (citation omitted).

Commonwealth v. Morgan, 476 Mass. 768, 777 (2017). We thus

22In Vamos, 797 F.2d at 1153-1154, however, the court was not presented directly with the question whether nonpractitioners could be prosecuted; at issue was the proper standard of liability. 24

conclude that Miller cannot be prosecuted for improper

prescribing under the Controlled Substances Act, and the

indictments against her charging violations of G. L. c. 94C,

§ 19 (a), properly were dismissed.23

c. Uttering a false prescription, in violation of G. L.

c. 94C, § 33 (b). General Laws c. 94C, § 33 (b), prohibits

"utter[ing] a false prescription for a controlled substance,"

and "knowingly or intentionally acquir[ing] . . . possession of

a controlled substance by means of forgery, fraud, deception or

subterfuge." The Commonwealth argues that the prescriptions at

issue were "false" because they conveyed to the pharmacist the

false impression that a doctor had been present to issue them,

and because Miller altered the pre-signed prescription forms by

filling in the details of each prescription. We reach a

different conclusion. In our view, a prescription is "false"

when it lacks genuine authorization, such as when a person

issues a prescription with fake credentials, or "borrows"

23This is not to say that nonpractitioners are altogether immune from liability under the Controlled Substances Act. General Laws c. 94C, § 19 (a), is but one component of the act's comprehensive framework for regulating controlled substances, focused specifically on preventing practitioners from abusing their prescribing authority to engage in illicit distribution of such drugs. For example, had Miller issued the same prescriptions in Stirlacci's name, but without his permission, she could have been prosecuted for uttering false prescriptions under G. L. c. 94C, § 33 (b). 25

another practitioner's genuine credentials without that

practitioner's involvement or consent.

i. Definition of "uttering a false prescription." To

determine whether the indictments charging this offense should

have been dismissed, we first must decide what conduct "uttering

a false prescription" circumscribes. More specifically, we must

identify what makes a prescription "false."

We begin with the plain statutory language, "the principal

source of insight into Legislative purpose" (citation omitted).

See Simon, 395 Mass. at 242. Three words -- "prescription,"

"utter," and "person" -- have particular significance. Under

the Controlled Substances Act, a "prescription" may be issued

only by a registered practitioner who is authorized to prescribe

controlled substances. See G. L. c. 94C, § 18 (a)-(b). While

provisions of the Controlled Substances Act that regulate

prescriptions generally refer to "practitioners,"24 G. L. c. 94C,

§ 33 (b), notably refers to "persons." The act defines "person"

broadly to include individuals, businesses, and other entities.

See G. L. c. 94C, § 1. Although the definition of "person" does

24See, e.g., G. L. c. 94C, § 1 (defining oral and written prescriptions as orders to dispense medication by "practitioner"); G. L. c. 94C, § 17 (a)-(b) (no Schedule II controlled substance may be dispensed without prescription by "practitioner"); G. L. c. 94C, § 18 (a)-(b) (prescriptions for controlled substances may be issued only by registered, authorized "practitioner"); G. L. c. 94C, §§ 19-19D (regulating conditions in which practitioners issue prescriptions). 26

not exclude "practitioners," a key distinction between the two

is that only practitioners may prescribe drugs. One conclusion

we thus can draw from the Legislature's choice to punish

"persons" who utter false prescriptions is that the

Legislature's focus was on those who lack prescribing authority.

We likewise presume that the choice to punish "uttering"

was intentional. See Simon, 395 Mass. at 243 (where word has

technical meaning, court will adopt that meaning). "Uttering"

is defined as "presenting a false or worthless instrument with

the intent to harm or defraud." Black's Law Dictionary, supra

at 1860. "The elements of the crime of uttering . . . are

'(1) offering as genuine; (2) an instrument; (3) known to be

forged; (4) with the intent to defraud'" (citation omitted).

Commonwealth v. O'Connell, 438 Mass. 658, 664 n.9 (2003).

"Uttering" involves the deliberate use of an instrument falsely

to convey authorization or entitlement. In this vein,

"uttering" has been applied to the presentation of forged

checks. See id. at 663 (sufficient evidence to convict of

uttering where defendant cashed forged checks because logical

inference was that defendant intended to convince bank to

release funds); Commonwealth v. Analetto, 326 Mass. 115, 118-119

(1950) (check forger may be presumed to intend that payer will

act under false impression that check is genuine). 27

The analogy to a forged check helps illustrate the types of

false statements that "uttering" proscribes. When one "utters"

a forged check, one falsely conveys that the specified funds

were released by a person with the authority to do so. Just as

a check authorizes the release of funds on the authority of the

account holder, a prescription authorizes the dispensation of

drugs on the authority of a licensed prescriber. We therefore

can infer that a person "utters a false prescription" by

deliberately issuing a prescription that appears real, but which

actually was not issued by the authorized practitioner named in

the prescription.

We draw further support for this reading from previous

versions of the statute. See Bellalta, 481 Mass. at 378. In

1917, the Legislature enacted criminal penalties for any person

"who, not being an authorized physician, dentist or

veterinarian . . . knowingly issues or utters a prescription or

written order falsely made or altered" (emphasis added). See

St. 1917, c. 275, § 6. Subsequent revisions of this provision

no longer include an explicit description of "uttering" as an

offense committed by persons not authorized to practice

medicine. Nonetheless, the revised versions retained language

that reflects an intent to punish persons who misrepresent 28

themselves as having the authority to issue prescriptions.25 We

thus conclude that a "false prescription" is one that falsely

purports to have been issued by an authorized practitioner.26

ii. Sufficiency of the evidence to sustain the

indictments. Even when viewed in the light most favorable to

the Commonwealth, there is no evidence that either defendant

deliberately appropriated false prescribing authority. It may

be that, technically, Miller "altered" the prescriptions. There

is no evidence, however, that Miller believed that she was

exceeding the bounds of Stirlacci's authority. Stirlacci, of

course, neither forged nor altered the prescriptions; the

signature was his, and he directed Miller to fill in the rest.

It also is relevant that the prescriptions at issue were

renewals of ongoing treatment, as opposed to entirely new

prescriptions. Because the prescriptions were renewals, Miller

25For example, G. L. c. 94, § 203 (4), (5), as appearing in St. 1957, c. 660, provided that "[n]o person shall make or utter any false or forged prescription," but separately provided that "no person shall, for the purpose of obtaining a narcotic drug, falsely assume the title of . . . a manufacturer, wholesaler, pharmacist, physician, dentist, veterinarian, or other authorized person."

26To be clear, we are not suggesting that a practitioner never could utter a false prescription. For example, if a practitioner were to issue a prescription for a substance the practitioner was not formally authorized to prescribe, or to use credentials that were false, inactive, or assigned to another practitioner, the practitioner would be in violation of the statute. 29

simply had to rely on Stirlacci's prior prescription to complete

the new prescription form. She did not engage in any "new"

medical decision-making, thereby acting entirely within the

scope of Stirlacci's genuine prescribing authority. Although

not present, Stirlacci thus effectively dictated the substance

of the prescription by virtue of his prior decision to authorize

treatment. In sum, each prescription in the present case was

presented as having been issued by Stirlacci, and was, in fact,

issued by him. The prescriptions were not "false" because

Stirlacci authorized their issuance on the basis of his genuine

authority to prescribe the indicated drugs. We thus conclude

that the indictments under G. L. c. 94C, § 33 (b), properly were

dismissed.

d. Submitting false health care claims in violation of

G. L. c. 175H, § 2. We next consider whether there was probable

cause to indict the defendants for submitting false health

claims under G. L. c. 175H, § 2. The Commonwealth contends that

the records of twenty-two patients establish probable cause that

the defendants knowingly made false statements by using billing

codes that would indicate to insurance companies that Stirlacci

had seen the patients. The judge agreed with respect to sixteen

patients. We conclude that there was probable cause with

respect to twenty of the twenty-two counts against each

defendant. 30

General Laws c. 175H, § 2, makes it a crime "knowingly and

willfully" to make a false statement or to misrepresent a

material fact in an application for payment of a health care

benefit. Because establishing probable cause requires

sufficient evidence of all the elements of an offense, see

Moran, 453 Mass. at 884, we first must consider whether there

was probable cause that the defendants submitted false

statements and, if so, whether they did so knowingly.

i. Probable cause that the defendants made false

statements. "False," in this context, means "wholly or

partially false, fictitious, untrue, or deceptive." See G. L.

c. 175H, § 1. According to the Commonwealth, there was probable

cause to find that the defendants made false statements by

submitting claims to insurance providers using billing codes

indicating that the patients had been seen by a doctor. We

agree.

Providers use a standardized system of procedure codes to

classify the services provided to a patient when billing that

patient's insurer. See United States v. Singh, 390 F.3d 168,

177 (2d Cir. 2004). Federal cases enforcing similar false

health care claim provisions have determined that the use of an

improper procedure code can constitute a "false statement" where

it results in a service provider seeking reimbursement at a

greater rate than the provider otherwise would have. See id. 31

at 177, 187-189 (evidence of health care fraud where doctor told

nurse to bill her services using procedure codes that required

doctor's involvement); United States v. Larm, 824 F.2d 780, 782-

783 (9th Cir. 1987), cert. denied, 484 U.S. 1078 (1988)

(sufficient evidence of false statement where defendant used

procedure code implying medical examination took place despite

availability of code that more accurately captured minimal

services actually provided).

Here, the grand jury were not provided with an explanation

of medical billing procedures. They instead had two primary

sources of information to use in determining whether the

defendants made false statements: patient records showing a

billing entry on a date when Stirlacci was in Kentucky, and the

trooper's testimony regarding the significance of those

documents.27 We therefore consider whether the grand jury

reasonably could have interpreted the patient billing records,

with the aid of the trooper's testimony, as false.

From the billing entries alone, the grand jury could have

inferred that patients were billed for an office visit on a date

when Stirlacci was in Kentucky, and that Stirlacci was listed as

27For certain patients, there also were documents from the patients' insurance providers that presumably corroborated the data in the billing statement. In most cases, however, these documents lacked sufficiently explicit links to the billing entries, and the State police trooper did not provide any detailed explanation of how to interpret them. 32

the service provider. Absent more, however, this information

would not amount to a false statement, because the grand jury

also knew from the telephone calls that the renewals were issued

to patients who visited the office, and that Stirlacci was the

patients' doctor. The Commonwealth provided no additional

explanation of medical billing procedures that would have

allowed the grand jury to determine that the billing entries

falsely implied that Stirlacci was present.

The grand jury, however, also could have relied on the

trooper's assertion that the patients' billing records indicated

that they had been seen by Stirlacci. Although the judge

correctly observed that the trooper did not consistently

describe each patient's records as documenting a visit with

Stirlacci, the trooper twice made more general statements that

records for all the patients indicated that the patients had

been billed for visits with Stirlacci.

Thus, we conclude that the grand jury could have credited

the trooper's testimony that billing entries in the patient

records for the relevant time period implied Stirlacci's

presence. Upon reviewing the patient documentation that

indicated billing entries on dates when Stirlacci was in

Kentucky, the grand jury thereby could have inferred that the

defendants made false statements. We note, however, that the

evidence submitted to the grand jury did not include billing 33

records for two patients;28 accordingly, there was insufficient

evidence of a false statement for two of the twenty-two counts

against each defendant.29

ii. Probable cause that the defendants acted knowingly.

The Commonwealth also was required to establish probable cause

that the defendants made the allegedly false statements

"knowingly and willfully." See G. L. c. 175H, § 2. "A

defendant's intent is 'not susceptible of proof by direct

evidence, so resort is frequently made to proof by inference

from all the facts and circumstances developed at trial'"

(citation omitted). Commonwealth v. Pike, 430 Mass. 317, 321

(1999). Prior cases in this area indicate that we can discern

the requisite intent from deliberate misconduct.

28The defendants' argument that the inability to differentiate between the defective indictments requires dismissal of all of the indictments, under Commonwealth v. Barbosa, 421 Mass. 547 (1995), is misplaced. In that case, the grand jury returned a single indictment that could have applied to two different alleged instances of criminal conduct. Id. at 550. Here, the grand jury were presented with records for twenty-two patients and returned twenty-two indictments; there is thus no question as to which transactions the grand jury intended to indict. The remaining question simply is which counts of the indictment match which patients, a determination that is largely an administrative matter.

29Exhibit no. 12 does not include any billing data. Exhibit no. 14 does not include any billing records; it does include what appears to be insurance documents indicating a payment, but the information is insufficient to link the payment to a specific patient. 34

In Pike, we affirmed a conviction of submitting false

Medicaid claims where there was evidence that the defendant, who

described himself as "the local drug pusher," id., "furnished

prescriptions which he knew were illegal and would serve as the

basis of claims for Medicaid payments."30 Id. at 322-323. The

deliberate violation of prescribing rules was sufficient to

establish that the defendant acted "knowingly and willfully."

Federal cases concerning similar false health care claim

provisions further demonstrate that the fact that a falsehood

stems from a deliberate violation of established rules can

support the inference that the false statement was made

knowingly. See Singh, 390 F.3d at 177 (sufficient evidence of

knowingly false statement where defendant was aware that his

chosen billing code required physician's involvement based on

explicit language on billing form); Larm, 824 F.2d at 782-783

(sufficient evidence of knowingly false claim where defendant

previously had been informed that he was using improper codes).

Here, there was evidence that both defendants were aware

that the nurse practitioner had told Miller that she should not

be billing when patients had not been seen by a medical

30The defendant in Commonwealth v. Pike, 430 Mass. 317, 322 (2008), was convicted under G. L. c. 118E, § 40, which makes it a crime "knowingly and willfully [to make] or [cause to be made] any false statement" in connection with claims submitted to the Massachusetts Medicaid program. 35

professional, and yet decided to continue submitting claims.31

In addition, Stirlacci's statement that the nurse practitioner

did not understand that self-employed doctors had to operate by

rules that were different from those for large medical practices

also could support an inference that Stirlacci was aware that

his and Miller's conduct was improper.32 Viewing the evidence in

the light most favorable to the Commonwealth, we conclude that

the grand jury reasonably could have inferred that the

31The defendants at one point discussed the nurse practitioner's concerns:

Miller: "I'm billing and she's [criticizing] me for the way I'm billing. . . . I'm trying to . . . bring us revenue."

Stirlacci: "Why is she [criticizing you for] billing?"

Miller: "Because I'm doing a 99213, and she's like, 'I didn't even touch the patient. You can't do that. . . .' I'm like . . . [w]hy are you [criticizing me for a] med refill that I'm doing a 99213. Let me do it. I want to get money for these . . . patients."

Stirlacci: "All right . . . . You know the standards to bill, okay? And with patients coming in, yes. So . . . just . . . do what you know is right . . . ."

32 Discussing the nurse practitioner, Stirlacci said to Miller:

"I don't understand her . . . . [W]hen you're in the real world and you're trying to see patients and you're self- employed . . . you make the rules according to what works for you and what works for the patient . . . . I agree with some of her rules and regulations . . . , but other things . . . [are] not going to work because it's not good for business." 36

defendants were on notice that their billing practices falsely

could imply services that were not rendered. Moreover, the

grand jury could have inferred from Stirlacci and Miller's

conversations that they were sufficiently familiar with medical

billing practices to know which billing codes were appropriate.33

Therefore, the evidence presented, if not abundant, was

sufficient to establish probable cause that the defendants each

acted knowingly in making false statements.34

In sum, the Commonwealth established probable cause that

the defendants submitted false health care claims in violation

of G. L. c. 175H, § 2, for twenty of the twenty-two counts

against each defendant where the grand jury had documentation of

a billing entry. Because the individual indictments do not

refer to the patients by name, the Commonwealth shall, as the

judge previously ordered, submit a bill of particulars to

33The grand jury had evidence that Stirlacci told Miller to "put in the 99212 . . . for the date that [patients] picked [the renewal prescriptions] up, because they didn't see the doctor, so it's down charged. So, it's a 92 or a 93. . . . Anything and everything you can get in, get in." Although the grand jury did not have this information, apparently there is a separate code, 99211, that is appropriate to use when practitioners do not see patients. See United States v. Singh, 390 F.3d 168, 177 (2d Cir. 2004).

34Miller contends that, as an employee following orders, she could not have acted knowingly. This, however, is contradicted by the evidence that Miller disregarded the nurse practitioner's concerns and expressed a determination to have claims reimbursed. 37

clarify which indictments require dismissal. See Mass. R. Crim.

P. 13 (b), as appearing in 442 Mass. 1516 (2004) (court may

order prosecution to file bill of particulars on its own motion

during time allotted for pretrial proceedings, or at any such

time as judge may allow).

3. Conclusion. There was sufficient evidence to indict

Stirlacci for twenty-six counts of improper prescribing in

violation of G. L. c. 94C, § 19 (a), and those counts should not

have been dismissed. All the counts against Miller under G. L.

c. 94C, § 19 (a), shall be dismissed with prejudice. The counts

against both defendants for uttering false prescriptions under

G. L. c. 94C, § 33 (b), shall be dismissed without prejudice.

Finally, there was sufficient evidence to indict both defendants

for twenty counts each of submitting false health care claims

pursuant to G. L. c. 175H, § 2. On remand, the Commonwealth

shall submit a bill of particulars so that a Superior Court

judge may determine which of the counts should be reinstated

against both defendants, and which two counts must be dismissed

without prejudice. The matter is remanded to the Superior Court

for further proceedings consistent with this opinion.

So ordered.