Healthscript, Inc. v. State , 2002 Ind. LEXIS 545 ( 2002 )

BOEHM, Justice,

concurring.

I agree with the majority that the statutory provisions at issue here are less than models of clarity. One must sift through the many provisions of Indiana Code 12-15 to find the general requirement of section 12-15-21-1 that a Medicaid provider is considered to have agreed to comply with the statutes and rules governing the Medicaid program. One must then look to the Medicaid rules in the Indiana Administrative Code to find that providers are limited to their usual and customary charges when paid by Medicaid. Ind. Admin. Code tit. 405, r. 1-6-21.l1(g) (1996). I agree with the majority that a violation of section 7.1(a)(1) is simply too attenuated.

However, subsection (a)(1) is not the only relevant provision under section 7.1. Healthscript was charged in the second amended - information - with - violating Indiana Code section 35-48-5-7.1 without specifying which subsection of that section was violated. Subsection 7.1(a)(2) provides that a person who knowingly or intentionally "obtains payment from the Medicaid program under IC 12-15 by means of a false or misleading oral or written statement or other fraudulent means" commits Medicaid fraud. The conduct alleged in the information was submitting a claim "for amounts exceeding the usual and customary charge which resulted in payments." According to the affidavit for probable ecause filed with the information, Healthscript knowingly charged the Medicaid program $181 per 9000 milliliters of sterilized water while it charged private non-Medicaid customers $22.50 and $25 for the same 9000 milliliters of water. One need not have a finely tuned moral compass to know that this conduct constitutes the obtaining of payments from the Medicaid program by means of a false statement. The usual and customary charge requirement was well known in the industry. In my view, given the regulatory scheme, presenting this claim constituted a representation that the $181) price,. was "usual and customary." There are undoubtedly many situations where the meaning of that phrase is debatable, but this is not one of them. Whatever rubber is in the concept is stretched far beyond the snapping point by a claim of $181 for water sold for $25 to commercial customers. The information charges that the misrepresentation was knowingly made and resulted in payment. If so, in my view, it violated subsection 7.1(a)(2).

In my view, Healthseript's constitutional separation of powers argument-that delegating criminal authority to an administrative ageney is improper-becomes a non-issue if this case is viewed as a subsection (a)(2) fraudulent claim case. The administrative regulation does not define. the crime. < Rather, it is part of the background that renders Healthsecript's payment requests false. The prohibited con-duet of making a false statement to receive payment is prohibited by subsection (a)(2).

Although I believe a violation of 7.1(a)(2) could have been charged, I concur in the majority opinion because the information did not accomplish that. The charge in the second amended information of a violation of Indiana Code section 85-48-5-7.1 was obviously not clear in alleging a violation of subsection (a)(2). The State itself focuses on Healthseript's conduct as a violation subsection (a)(1)⁹ In addition, the parties appear to have stipulated on appeal that the charge was under subsection (a)(1).

For these reasons, I would find that the charging information did not charge a violation of (a)(2) with sufficient clarity. See Moran v. State, 477 N.E.2d 100, 104 (Ind. Ct.App.1985) (finding that a count in the indictment failed the specificity test by failing to restrict the allegations to a violation of a particular subsection of a statute). The accused has the right to require that the allegations contained in the charging instrument state the crimes charged with sufficient certainty to enable the accused to anticipate the evidence adduced against him at trial, thereby enabling him to marshal evidence in his defense. Harwei, Inc. v. State, 459 N.E.2d 52, 56 (Ind.Ct.App.1984). "The indictment must state the crime charged in direct and unmistakable terms." Moran, 477 N.E.2d at 108-04. Any reasonable doubt as to the offense charged must be resolved in favor of the accused. Id. Simply charging Healthseript with conduct that contravenes a statute without specifying the violated subsections is insufficient specificity in the charging information.

DICKSON and RUCKER, JJ., concur.

9 . The State quotes subsections (a)(1), (a)(2), and (a)(5), but makes no argument focusing on either (2) or (5). Rather it contends, "This statute makes it a crime to knowingly or intentionally file a Medicaid claim in violation of Indiana Code 12-15" and "To be guilty of Medicaid Fraud, a provider must knowingly or intentionally file a claim in violation of Title 12, Article 15." Both seem to point to a claim of a subsection (1) violation.