September 5, 2019.
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.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Benjamin Shorey, Assistant District Attorney, for the
O’Donald III for Frank Stirlacci.
Anderson, Holyoke, for Jessica Miller.
Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
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.
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).
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.
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, stemmed from a number of prescriptions
issued between April 17, 2015, and May 11, 2015, while he was
incarcerated in Louisville,
Kentucky. Of particular concern to investigators
were fifteen prescriptions for hydrocodone, six prescriptions
for oxycodone, two prescriptions for fentanyl, and three
prescriptions for methadone.
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.
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
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 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
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. 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.
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.
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. In the second
excerpt, Stirlacci and Miller discussed the nurse
practitioner’s concerns with this arrangement. 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.
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. The Commonwealth appealed to the
Appeals Court, and we transferred the consolidated appeals to
this court on our own motion.
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. 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
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 ...