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COMMONWEALTH PENNSYLVANIA v. KENNETH A. STEIN (08/10/88)

decided: August 10, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
KENNETH A. STEIN, APPELLANT



Appeal from the Order of the Superior Court, Dated May 26, 1987, at No. 03015 Philadelphia 1985, Reversing and Remanding the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 486, 487 and 488 December Term, 1983, Dated November 6, 1985. Pa. Superior Ct. , A.2d (1987).

COUNSEL

Richard Max Bockol, for appellant.

Ronald T. Williamson, Deputy Atty. Gen., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Flaherty, J., files a concurring opinion in which Stout, J., joins. Nix, C.j., and McDermott, J., file a dissenting opinion.

Author: Papadakos

[ 519 Pa. Page 139]

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

This case concerns the question of whether the Court of Common Pleas of Philadelphia County (per Judge William Porter) was correct in quashing 27 counts of Medicaid fraud brought against Appellant. The Superior Court concluded that the pre-trial order quashing these counts was in error. For the reasons set forth below, we reverse and reinstate the order of the Court of Common Pleas.

The facts in this case are as follows. Appellant, Dr. Kenneth A. Stein, D.P.M., is a licensed podiatrist. At the time of his arrest in the instant case, on September 22, 1983, Appellant was a registered health care provider with the Commonwealth's Department of Public Welfare (DPW), which is the state agency that administers our Medical Assistance Program. Appellant was paid by the Commonwealth for podiatric services that he billed to the Medical

[ 519 Pa. Page 140]

Assistance Program. Appellant was arrested and charged with 99 counts of Medicaid fraud as set forth in three separate bills of information. Informations were filed against Appellant charging him with 33 violations of each of three different sections of the Fraud and Abuse Control provisions of the Public Welfare Code, 62 P.S. ยงยง 1407(a)(1), (a)(4) and (a)(9).*fn1

Essentially, Appellant was charged with billing DPW for services which, DPW charged, did not qualify for payments to Appellant as a medical provider. The disputed billings were for some 33 renewals of prescriptions for orthopaedic shoes for the children of three qualified medical assistance recipients. It is admitted that Appellant did not have face-to-face encounters with the minor children for whom he wrote the renewal prescriptions in this case. Rather, Appellant was contacted by the child's mother or elder sibling who indicated that there was a need for another prescription for orthopaedic shoes. Appellant claims that all of the children involved were from large families, that they were either at school or ill and so could not come to the doctor's office, and that no prescriptions were renewed until after Appellant had actually seen the child's mother or sibling at

[ 519 Pa. Page 141]

    his office. In any event, it is conceded that Appellant consulted each child's office file and then wrote out the prescription requested. He subsequently billed DPW under Fee Schedule, Procedure Code # 90005.

The Commonwealth contends that the renewal of such prescriptions in this manner is not compensable because payments for such services are not authorized by DPW regulations. It further argues that by allegedly billing for "office visits," Appellant had not rendered the type of service which must be rendered in order ...


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