Appeal from the Order entered August 24, 1983 in the Court of Common Pleas of Philadelphia County, Criminal No. 8304-2661-2667
Stuart M. Niemtzow, Deputy Attorney General, Norristown, for Commonwealth, appellant.
Gilbert B. Abramson, Philadelphia, for appellee.
Olszewski, Del Sole and Johnson, JJ. Del Sole, J., concurs in the result.
[ 343 Pa. Super. Page 110]
When incriminating testimonial information has been lawfully obtained in the course of a good faith civil investigation, may a defendant assert a fifth amendment privilege against its use in a subsequent criminal prosecution?
Appellee, the defendant below, is a dentist. As a dental health care provider, he received reimbursement for his services through the Medicaid Program of the Department of Public Welfare.
The Bureau of Utilization Review, an agency with the DPW, serves as that department's investigative arm. It inspects providers' bills and records to determine whether the providers are adhering to dental practice standards and the bills accurately reflect the services rendered. To that end, the Bureau may review providers' records, interview their patients and issue reports on its investigations. The Bureau can terminate a provider. It cannot, however, institute criminal proceedings. The Bureau must refer the matter for criminal prosecution to the Medicaid Fraud Control Unit of the State Department of Justice.
The Bureau contacted appellee after a computer print-out flagged him as a "high volume biller."*fn1 Upon investigation, the Bureau discovered a high number of questionable
[ 343 Pa. Super. Page 111]
services performed by appellee. Subsequent in-mouth examinations of the patients revealed discrepancies between the services billed and those actually provided. During a visit to appellee's office, November 12, 1981, a Bureau investigator procured patient files. On February 8, 1982, a Director of the Bureau referred the case to the Medicaid Fraud Control Unit of the Attorney General's Office.
Appellee was arrested February 10, 1983 and charged with Medicaid Fraud. 62 P.S. Sec. 1047. Following a preliminary hearing, he was held for court on 29 counts of Medicaid Fraud. The gravamen of these charges is that appellee knowingly submitted fake invoices to the Pennsylvania Medical Assistance Program with the intent to obtain greater remuneration than that he was due. Commonwealth's case rested on a statement made by appellee to Bureau personnel during the November 12, 1981 office visit. At that time, appellee acknowledged preparing or reviewing all billings generated from his dental office. Additionally, on November 17, 1981, appellee wrote a letter which accompanied and explained certain records he was supplying to the Bureau investigator.
Appellee filed timely pre-trial motions seeking, inter alia, to suppress dental records and statements obtained from him by Bureau personnel. Following an evidentiary hearing on the motions, the Honorable Jacob Kalish issued an opinion and order suppressing use of both the November 12, 1981 statement ...