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Commonwealth v. Stirlacci

Supreme Judicial Court of Massachusetts, Hampden

January 8, 2020

Frank STIRLACCI (and 135 companion cases [1] ).

         Argued September 5, 2019.

         [137 N.E.3d 379] 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, Holyoke, for Jessica Miller.

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


         LENK, J.

Page 776

          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 [137 N.E.3d 380] 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 on twenty of the twenty-two counts against each defendant of submitting false health care claims, in violation of G. L. c. 175H, � 2.

         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,

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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 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 run his practice, which he worried would "implode" in his absence. The conversations also indicate that a nurse practitioner employed [137 N.E.3d 381] by Stirlacci[6] 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

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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 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.

         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

Page 779

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 [137 N.E.3d 382] trooper also testified that he had interviewed that nurse practitioner, and read the grand jury her written statement. Her statement 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

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claims.[10] The Commonwealth appealed 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, 368 N.E.2d 1210 (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 crime charged, Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (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, 906 N.E.2d 343 (2009).

          Probable cause is a "considerably less exacting" standard than that required [137 N.E.3d 383] to support a conviction at trial. Commonwealth v. O’Dell, 392 Mass. 445, 451, 466 N.E.2d 828 (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, 766 N.E.2d 50 (2002). An appellate court reviews the evidence underlying a grand jury indictment in the light most favorable to the Commonwealth. See Commonwealth ...

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