Commonwealth v. Stirlacci

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SJC-12735
COMMONWEALTH vs. FRANK STIRLACCI
(and 135 companion cases1).
Hampden. September 5, 2019. - January 8, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Controlled Substances. Doctor, Controlled substances,
Prescription. Health Care.
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 for Jessica Miller.
1 Sixty-seven against Frank Stirlacci and sixty-eight
against Jessica Miller.
2
LENK, J. 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 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
3
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, 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
2 Between the two offices, Stirlacci apparently treated
approximately 3,000 patients.
3 Stirlacci was held in contempt of court in Kentucky for
being delinquent on spousal support payments. He was
incarcerated from April 17, 2015, to May 11, 2015.
4 Although it appears from the record that additional
prescriptions may have been issued, during the period that
Stirlacci was being held, for substances other than narcotics,
these twenty-six prescriptions were the focus of the
indictments.
4
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
5 The grand jury were not provided with a definition of
"down charging," but could have inferred that the phrase implied
that a medical office would bill insurance providers at a lower
rate if the doctor did not actually see the patient.
5
run his practice, which he worried would "implode" in his
absence. The conversations also indicate that a nurse
practitioner employed by Stirlacci6 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
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
6 The nurse practitioner ultimately left the practice on
May 7, 2015, before Stirlacci returned from Kentucky after
May 11, 2015.
6
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.
7 As discussed supra, fifteen prescriptions were for
hydrocodone, six were for oxycodone, two were for fentanyl, and
three were for methadone. Stirlacci's case load was
approximately 3,000 patients between his two offices.
7
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 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 trooper also
testified that he had interviewed that nurse practitioner, and
read the grand jury her written statement. Her statement
8 The first excerpt stated in part:
Miller: "What about people that are picking up scripts,
can I put in charges for them?"
Stirlacci: "Yes"
Miller: "Even though they weren't seen?"
Stirlacci: "Yes. Put in the 99212. . . . For the date
that they picked them up, because they didn't see the
doctor, so it's down charged. So, it's a 92 or a 93. . . .
Anything and everything you can get in, get in."
9 The second excerpt reads as follows:
Miller (summarizing a conversation she had had with the
nurse practitioner)]: "Doc is the one that makes any
decisions. He told me to write scripts, so I'm writing
scripts."
Stirlacci: "Right. So what does she [not] like? The
patients were seen, they came into the office."
Miller: "She doesn't like [that we are] writing scripts
for patients and then expecting her to do the office
thing."
8
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 claims.10 The Commonwealth appealed
10In order to clarify which specific counts had
insufficient evidence, the judge ordered the Commonwealth to
submit a bill of particulars. This was necessary because the
individual indictments did not identify the patient to whom they
pertained. As further proceedings in the Superior Court were
stayed pending this appeal, these counts have yet to be
dismissed.
9
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 (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
11As discussed in part 2.a, infra, the Commonwealth
contends that it is sufficient to establish probable cause that
either the prescriptions lacked a legitimate medical purpose or
the prescriptions were issued outside the usual course of
practice.
10
crime charged, Commonwealth v. McCarthy, 385 Mass. 160, 163
(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 (2009).
Probable cause is a "considerably less exacting" standard
than that required to support a conviction at trial.
Commonwealth v. O'Dell, 392 Mass. 445, 451 (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 (2002). An appellate court reviews the evidence underlying
a grand jury indictment in the light most favorable to the
Commonwealth. See Commonwealth v. Catalina, 407 Mass. 779, 781
(1990). In considering a judge's decision to dismiss for lack
of sufficient evidence, we do not defer to the judge's factual
findings or legal conclusions. See Commonwealth v. Ilya I., 470
Mass. 625, 627 (2015).
b. Improper prescribing in violation of G. L. c. 94C,
§ 19 (a). The Controlled Substances Act mandates that valid
prescriptions for controlled substances "be issued for a
legitimate medical purpose by a practitioner acting in the usual
course of his [or her] professional practice." G. L. c. 94C,
§ 19 (a). Practitioners who issue invalid prescriptions are
subject to criminal penalties. Id. To determine whether the
11
indictments should have been dismissed, we must (a) establish
the standard for "improper prescribing" by defining the
relationship between "legitimate medical purpose" and "usual
course of professional practice"; (b) assess whether the
Commonwealth presented sufficient evidence to establish probable
cause that there was improper prescribing by a practitioner, and
(c) decide whether the explicit reference to practitioners in
the Controlled Substances Act precludes liability for a
nonpractitioner such as Miller. We conclude that the
Commonwealth has met its burden with respect to Stirlacci, but
that G. L. c. 94C, § 19 (a), does not impose liability on
nonpractitioners such as Miller.
i. Standard for "improper prescribing." "[A] statute must
be interpreted according to the intent of the Legislature
ascertained from all its words construed by the ordinary and
approved usage of the language" (citation omitted). Seideman v.
Newton, 452 Mass. 472, 477 (2008). In order to effectuate the
intent of the Legislature, we consider the text "in connection
with the cause of its enactment . . . and the main object to be
accomplished." (citation omitted). Id. We discern the intent
"from all [of a statute's] parts and from the subject matter to
which it relates." Id. We also consider a statute within the
context of the broader statutory framework, including prior
versions of the same statute and similar enactments. See
12
Bellalta v. Zoning Bd. of Appeals of Brookline, 481 Mass. 372,
378 (2019).
A. Defining "legitimate medical purpose" and "usual course
of professional practice." General Laws c. 94C, § 19 (a),
provides that a valid prescription is one issued "for a
legitimate medical purpose by a practitioner acting in the usual
course of his [or her] professional practice." G. L. c. 94C,
§ 19 (a). Articulating a standard for improper prescribing
requires us to define these two concepts and to determine their
respective roles in distinguishing valid prescribing from
criminal conduct.
The Commonwealth argues that it is sufficient to prove
either that a prescription lacked a legitimate medical purpose
or that it was issued outside the usual course of professional
practice. In the Commonwealth's view, G. L. c. 94C, § 19 (a),
imposes two distinct requirements for a valid prescription:
that it (1) have a "legitimate medical purpose" and (2) be
issued in the "usual course of professional practice." Thus,
the Commonwealth argues, a prescription is improper if the
Commonwealth can prove that a practitioner failed to meet just
one of these requirements.
We are not convinced by this argument. General Laws
c. 94C, § 19 (a), provides that a valid prescription is one
issued "for a legitimate medical purpose by a practitioner
13
acting in the usual course of his [or her] professional
practice." To read "legitimate medical purpose" and "usual
course of professional practice" as two distinct requirements
would require inserting the word "and" between the two phrases.
We "refrain from reading into the statute . . . words that the
Legislature . . . chose not to include" (quotation and citation
omitted). Essex Regional Retirement Bd. v. Swallow, 481 Mass.
241, 252 (2019). Moreover, for the reasons that follow, we
conclude that "legitimate medical purpose" and "usual course of
professional practice" are best read as a single, holistic
standard.
Because neither "legitimate medical purpose" nor "usual
course of professional practice" are defined anywhere in the
statute, we turn first to the ordinary usage of this language.
"Purpose" implies one's goal or intent, Black's Law Dictionary
1493 (11th ed. 2019), while "legitimate" implies something that
is "genuine" or "lawful," see id. at 1084. Accordingly,
"legitimate medical purpose" may be read as a genuine or lawful
medical intent or goal. "Usual" implies "ordinary" or
"customary." See id. at 1857. "Course" implies a "routine."
See, e.g., id. at 443 (defining "course of business" as "[t]he
normal routine of managing a trade or business" [emphasis
added]). "Professional" means "pertaining to one's profession,"
here, the medical profession. See Dorland's Illustrated Medical
14
Dictionary 1514 (30th ed. 2003). The "usual course of
professional practice" thus may be read to mean the routines
customarily expected in the context of the medical profession.
See United States v. Smith, 573 F.3d 639, 647-648 (8th Cir.
2009) ("usual course of professional practice" refers to
"generally recognized and accepted medical practices" [citation
omitted]).
From the plain language, then, we can infer that the
relevant factors when determining if a practitioner has engaged
in improper prescribing are whether the practitioner's intent is
not related to a genuine medical objective, and the degree to
which the practitioner's conduct deviates from "generally
recognized and accepted medical practices." See Smith, 573 F.3d
at 647. What remains unclear is the precise relationship
between these factors. We therefore turn from the text to a
broader consideration of the objectives of the statute.
B. Purpose of G. L. c. 94C, § 19 (a). When crafting the
Controlled Substances Act, the Legislature recognized the need
to strike a careful balance between allowing medical
practitioners to prescribe narcotics where appropriate as
medical treatment and preventing the same practitioners from
abusing this power to promote the unlawful distribution of these
drugs. By its terms, G. L. c. 94C, § 19 (a), both serves to
create "an exemption from criminal liability" for practitioners
15
who issue proper prescriptions and a "gateway to liability" that
"makes it possible to prosecute physicians" who issue improper
prescriptions. See Commonwealth v. Brown, 456 Mass. 708, 717-
718 (2010). This fundamental legislative intent can be traced
to previous drug laws in the Commonwealth, which use similar
language and reflect a concern with ensuring that medical
professionals do not use their prescribing authority to evade
narcotics controls.12
To preserve this careful balance, courts also have held
that the prohibition on improper prescribing does not establish
criminal liability merely for medical malpractice. "It is not
enough to show that the physician did not comply with accepted
medical practice." Commonwealth v. Kobrin, 72 Mass. App. Ct
589, 596 (2008). In Commonwealth v. Comins, 371 Mass. 222, 232
(1976), cert. denied, 430 U.S. 946 (1977), we observed that
"mere malpractice in the prescribing of drugs has not been made
a crime," and that the physician must not have "intend[ed] to
achieve a legitimate medical objective."
12For example, G. L. c. 94, § 200, as appearing in
St. 1957, c. 660, provided, "A physician . . . in good faith and
in the course of his [or her] professional practice only, for
the alleviation of pain and suffering or for the treatment or
alleviation of disease may prescribe . . . narcotic drugs."
Similarly, G. L. c. 94, § 199E, as appearing in St. 1957,
c. 660, exempted certain uses of narcotic drugs so long as they
were "administered, dispensed and sold in good faith as a
medicine, and not for the purpose of evading the provisions of
the narcotic drugs law."
16
This approach is consistent with positions adopted by the
Federal courts in interpreting the Comprehensive Drug Abuse
Prevention and Control Act of 1970, 21 U.S.C. §§ 801 et seq., on
which the Commonwealth's Controlled Substances Act is modeled.
See Brown, 456 Mass. at 716. Under the Federal statute, "courts
have consistently concluded that it is proper to instruct juries
that a doctor should not be held criminally liable if the doctor
acted in good faith when treating his [or her] patients."
United States v. Hurwitz, 459 F.3d 463, 477 (4th Cir. 2006).
"[T]he government must prove . . . that the practitioner acted
with intent to distribute the drugs and with intent to
distribute them outside the course of professional practice."
United States v. Feingold, 454 F.3d 1001, 1008 (9th Cir.), cert.
denied, 549 U.S. 1067 (2006).13
C. Standard for improper prescribing under G. L. c. 94C,
§ 19 (a). The distinguishing factor between proper and improper
prescribing, or between mere malpractice and criminal conduct,
is the practitioner's intent. The defining feature of a valid
13The emphasis on intentional action in United States v.
Feingold, 454 F.3d 1001, 1007-1008 (9th Cir.), cert. denied, 549
U.S. 1067 (2006), perhaps reflects the Federal statute's
explicit prohibition of "knowingly or intentionally" dispensing
a controlled substance, 21 U.S.C. § 841(a)(1), language not
included in G. L. c. 94C, § 19 (a). Because we interpret G. L.
c. 94C, § 19 (a), to require the Commonwealth to prove that the
accused practitioner acted without a legitimate medical
objective, however, the requirement that the Commonwealth prove
that the practitioner acted with intention is implied.
17
prescription is that it is issued for a legitimate medical
purpose. This means that its issuance is the product of "an
honest exercise of professional judgment as to a patient's
medical needs . . . in accordance with what [the practitioner]
reasonably believe[s] to be proper medical practice" (citation
omitted). United States v. Volkman, 797 F.3d 377, 387-388 (6th
Cir.), cert. denied, 136 S. Ct. 348 (2015).
Read together, "legitimate medical purpose" and "usual
course of professional practice" capture what separates proper
prescribing -- including erroneous prescribing that might
constitute medical malpractice -- from improper prescribing.
The two statutory phrases are not separate elements but, rather,
mutually reinforcing concepts. If a prescription lacks a
"legitimate medical purpose," it has been issued outside the
"usual course of professional practice." See United States v.
Nelson, 383 F.3d 1227, 1231 (10th Cir. 2004) (no distinction
between "usual course of professional practice" and "legitimate
medical purpose" in Comprehensive Drug Abuse Prevention and
Control Act of 1970 and its implementing regulations).
Moreover, if a practitioner issues a prescription absent
any effort to follow the basic routines associated with "the
usual course of professional practice," this can indicate that a
prescription was not intended for genuine medical treatment.
See Comins, 371 Mass. at 232-233 (physician's failure to conduct
18
any medical examination prior to issuing prescriptions supported
inference that physician acted without legitimate medical
purpose).14
In sum, we hold that a practitioner may be found guilty of
improper prescribing, in violation of G. L. c. 94C, § 19 (a),
where the Commonwealth can establish that the practitioner
issued a prescription for a controlled substance for a purpose
other than genuine medical treatment. A prescription is not
issued for genuine medical treatment where a practitioner fails
to exercise medical judgment in a manner consistent with the
basic routines associated with such medical treatment. Because
mere malpractice does not constitute improper prescribing, a
practitioner who errs despite a good faith effort to diagnose
and treat a patient has not violated the statute.
ii. Probable cause to indict a practitioner for improper
prescribing. We turn to whether there was sufficient evidence
here to sustain the indictments for improper prescribing. As
discussed supra, the Commonwealth must establish probable cause
that (1) a practitioner (2) issued a prescription for a
controlled substance (3) for a purpose other than genuine
14For example, in Comins, 371 Mass. at 229-230, 232-233,
experts testified that the defendant's decisions to prescribe
drugs requested by patients, or to prescribe drugs without ever
examining the patient, were contrary to accepted medical
practice and bolstered the conclusion that the defendant lacked
a legitimate medical purpose in issuing those prescriptions.
19
medical treatment. We first determine whether there was
probable cause to indict Stirlacci. As there was no dispute
that Stirlacci is a practitioner, or that the twenty-six
prescriptions at issue were for controlled substances, the only
question is whether there was probable cause that the
prescriptions were issued for a purpose other than genuine
medical treatment. We conclude that there was, and thus that
there was sufficient evidence to indict.15
Viewing the evidence presented to the grand jury in the
light most favorable to the Commonwealth, we consider what the
grand jury could have found from the entirety of Stirlacci's
transcripts, the patient records, and the State police trooper's
testimony.16 From the evidence the Commonwealth put before them,
15We nonetheless note, as did the Superior Court judge,
that the evidence presented to date, taken as true, indicates
far less egregious conduct than that alleged in prior cases
enforcing our narcotics laws against physicians. Compare
Commonwealth v. Pike, 430 Mass. 317, 321 (1999) (defendant
stated that he was "local drug pusher"); Comins, 371 Mass.
at 229 (defendant prescribed drugs at patient's request despite
patient's statement that patient suffered from substance abuse,
and defendant issued prescriptions without ever conducting
medical examination of patient).
16The judge sought guidance from the Board of Registration
in Medicine's prescribing practices policy and guidelines, which
enumerate indicators that a prescription may lack a legitimate
medical purpose. Because the grand jury were not presented with
these indicators, however, we decline to consider them in our
analysis of whether the grand jury could have found probable
cause on the evidence before them.
20
the grand jury reasonably could have inferred that Stirlacci,
while incarcerated, authorized Miller to issue renewal
prescriptions for existing patients, using pre-signed
prescription forms. The grand jury arguably also could have
inferred that one motive for doing so was to maintain cash
flow.17 Most significantly, the grand jury reasonably could have
inferred that Stirlacci did not know which specific patients
received renewal prescriptions from Miller.18
From these inferences, even absent expert testimony, the
grand jury could have found that Stirlacci issued prescriptions
without exercising individualized medical judgment at the time
when the renewals were issued. From this, the grand jury could
have concluded that Stirlacci issued prescriptions without first
ascertaining whether they remained appropriate courses of
treatment. This was sufficient to establish probable cause that
the prescriptions were not issued for a legitimate medical
purpose in the usual course of professional practice. Such a
conclusion is further bolstered by a plausible inference that
17Stirlacci told Miller to "get charges in because that
brings cash flow." Stirlacci separately told the manager of his
Springfield office to "just try to plug in as much as we
can . . . the pipeline's got to flow."
18In one telephone call, Stirlacci said to Miller, "I don't
know how many [prescriptions] you wrote today. I don't know how
many [pre-signed prescription forms] you have left."
21
Stirlacci's reason for directing Miller to issue the
prescriptions was, at least in part,19 to maintain the viability
of his practice.20
iii. Nonpractitioner liability for improper prescribing
under G. L. c. 94C, § 19 (a). We next consider whether G. L.
c. 94C, § 19 (a), applies to nonpractitioners. We conclude that
it does not.
"The starting point of our analysis is the language of the
statute, 'the principal source of insight into Legislative
purpose.'" Simon v. State Examiners of Electricians, 395 Mass.
238, 242 (1985), quoting Commonwealth v. Lightfoot, 391 Mass.
718, 720 (1984). General Laws c. 94C, § 19 (a), imposes
liability on "practitioners." Chapter 94C includes an extensive
definition of "practitioner" that makes no reference to lay
19The telephone records also revealed Stirlacci's concerns
about patient abandonment, and the possibility of liability
should any patients suffer medical injury after not having been
able to obtain their medicines. Many patients' records indicate
multiple chronic diagnoses and nonopioid prescriptions to treat
chronic conditions, such as high blood pressure.
20Of course, "having . . . a keen profit motive does not
itself denude a physician of the intention to treat medically a
patient's condition." Commonwealth v. Kobrin, 72 Mass. App. Ct.
589, 607 (2008). While a profit motive would not alone
establish probable cause of improper prescribing, it can support
such a finding when presented, as here, in conjunction with more
direct evidence that a practitioner lacked a legitimate medical
purpose.
22
persons employed by medical professionals.21 See G. L. c. 94C,
§ 1. Accordingly, Miller cannot be prosecuted directly as a
practitioner for improper prescribing.
We then consider whether Miller, acting as Stirlacci's
agent, could be prosecuted as an accessory. The Commonwealth
argues that Miller could be held liable if she provided aid to
Stirlacci with the shared intent to issue prescriptions in bad
faith. We construe G. L. c. 94C, § 19 (a), to preclude
prosecution of nonpractitioners as accessories. The statutory
language expressly places "responsibility for the proper
prescribing . . . of controlled substances . . . upon the
prescribing practitioner," and a "corresponding
responsibility . . . with the pharmacist who fills the
21 General Laws c. 94C, § 1, defines a "practitioner" as
"(a) A physician, dentist, veterinarian, podiatrist,
scientific investigator, or other person registered to
distribute, dispense, conduct research with respect to, or
use in teaching or chemical analysis, a controlled
substance in the course of professional practice or
research in the commonwealth;
"(b) A pharmacy, hospital, or other institution registered
to distribute, dispense, conduct research with respect to
or to administer a controlled substance in the course of
professional practice or research in the commonwealth.
"(c) An optometrist authorized by [G. L. c. 112, §§ 66 and
66B,] and registered pursuant to [§ 7 (h)] to utilize and
prescribe therapeutic pharmaceutical agents in the course
of professional practice in the commonwealth."
23
prescription." See G. L. c. 94C, § 19 (a). "Clear and
unambiguous language in a statute is conclusive as to
legislative intent." Massachusetts Insurers Insolvency Fund v.
Smith, 458 Mass. 561, 565 (2010). The statute clearly refers to
practitioners, and we see no reason to expand its reach. But
see United States v. Vamos, 797 F.2d 1146, 1153-1154 (2d Cir.
1986), cert. denied, 479 U.S. 1036 (1987) (affirming conviction
of physician's nurse and office manager for aiding and abetting
distribution of controlled substance, outside scope of medical
practice, under Federal controlled substances act).22
Interpreting G. L. c. 94C, § 19 (a), as a provision aimed
specifically at practitioners also is sensible because the
critical inquiry is whether the prescriptions were issued in
furtherance of genuine medical treatment. Because criminal
liability under G. L. c. 94C, § 19 (a), turns on the exercise of
medical judgment, the Legislature could not have intended to
evaluate the intentions of lay persons who lack the authority to
provide or authorize medical treatment. We must interpret the
provision "so as to render the legislation effective, consonant
with sound reason and common sense" (citation omitted).
Commonwealth v. Morgan, 476 Mass. 768, 777 (2017). We thus
22In Vamos, 797 F.2d at 1153-1154, however, the court was
not presented directly with the question whether
nonpractitioners could be prosecuted; at issue was the proper
standard of liability.
24
conclude that Miller cannot be prosecuted for improper
prescribing under the Controlled Substances Act, and the
indictments against her charging violations of G. L. c. 94C,
§ 19 (a), properly were dismissed.23
c. Uttering a false prescription, in violation of G. L.
c. 94C, § 33 (b). General Laws c. 94C, § 33 (b), prohibits
"utter[ing] a false prescription for a controlled substance,"
and "knowingly or intentionally acquir[ing] . . . possession of
a controlled substance by means of forgery, fraud, deception or
subterfuge." The Commonwealth argues that the prescriptions at
issue were "false" because they conveyed to the pharmacist the
false impression that a doctor had been present to issue them,
and because Miller altered the pre-signed prescription forms by
filling in the details of each prescription. We reach a
different conclusion. In our view, a prescription is "false"
when it lacks genuine authorization, such as when a person
issues a prescription with fake credentials, or "borrows"
23This is not to say that nonpractitioners are altogether
immune from liability under the Controlled Substances Act.
General Laws c. 94C, § 19 (a), is but one component of the act's
comprehensive framework for regulating controlled substances,
focused specifically on preventing practitioners from abusing
their prescribing authority to engage in illicit distribution of
such drugs. For example, had Miller issued the same
prescriptions in Stirlacci's name, but without his permission,
she could have been prosecuted for uttering false prescriptions
under G. L. c. 94C, § 33 (b).
25
another practitioner's genuine credentials without that
practitioner's involvement or consent.
i. Definition of "uttering a false prescription." To
determine whether the indictments charging this offense should
have been dismissed, we first must decide what conduct "uttering
a false prescription" circumscribes. More specifically, we must
identify what makes a prescription "false."
We begin with the plain statutory language, "the principal
source of insight into Legislative purpose" (citation omitted).
See Simon, 395 Mass. at 242. Three words -- "prescription,"
"utter," and "person" -- have particular significance. Under
the Controlled Substances Act, a "prescription" may be issued
only by a registered practitioner who is authorized to prescribe
controlled substances. See G. L. c. 94C, § 18 (a)-(b). While
provisions of the Controlled Substances Act that regulate
prescriptions generally refer to "practitioners,"24 G. L. c. 94C,
§ 33 (b), notably refers to "persons." The act defines "person"
broadly to include individuals, businesses, and other entities.
See G. L. c. 94C, § 1. Although the definition of "person" does
24See, e.g., G. L. c. 94C, § 1 (defining oral and written
prescriptions as orders to dispense medication by
"practitioner"); G. L. c. 94C, § 17 (a)-(b) (no Schedule II
controlled substance may be dispensed without prescription by
"practitioner"); G. L. c. 94C, § 18 (a)-(b) (prescriptions for
controlled substances may be issued only by registered,
authorized "practitioner"); G. L. c. 94C, §§ 19-19D (regulating
conditions in which practitioners issue prescriptions).
26
not exclude "practitioners," a key distinction between the two
is that only practitioners may prescribe drugs. One conclusion
we thus can draw from the Legislature's choice to punish
"persons" who utter false prescriptions is that the
Legislature's focus was on those who lack prescribing authority.
We likewise presume that the choice to punish "uttering"
was intentional. See Simon, 395 Mass. at 243 (where word has
technical meaning, court will adopt that meaning). "Uttering"
is defined as "presenting a false or worthless instrument with
the intent to harm or defraud." Black's Law Dictionary, supra
at 1860. "The elements of the crime of uttering . . . are
'(1) offering as genuine; (2) an instrument; (3) known to be
forged; (4) with the intent to defraud'" (citation omitted).
Commonwealth v. O'Connell, 438 Mass. 658, 664 n.9 (2003).
"Uttering" involves the deliberate use of an instrument falsely
to convey authorization or entitlement. In this vein,
"uttering" has been applied to the presentation of forged
checks. See id. at 663 (sufficient evidence to convict of
uttering where defendant cashed forged checks because logical
inference was that defendant intended to convince bank to
release funds); Commonwealth v. Analetto, 326 Mass. 115, 118-119
(1950) (check forger may be presumed to intend that payer will
act under false impression that check is genuine).
27
The analogy to a forged check helps illustrate the types of
false statements that "uttering" proscribes. When one "utters"
a forged check, one falsely conveys that the specified funds
were released by a person with the authority to do so. Just as
a check authorizes the release of funds on the authority of the
account holder, a prescription authorizes the dispensation of
drugs on the authority of a licensed prescriber. We therefore
can infer that a person "utters a false prescription" by
deliberately issuing a prescription that appears real, but which
actually was not issued by the authorized practitioner named in
the prescription.
We draw further support for this reading from previous
versions of the statute. See Bellalta, 481 Mass. at 378. In
1917, the Legislature enacted criminal penalties for any person
"who, not being an authorized physician, dentist or
veterinarian . . . knowingly issues or utters a prescription or
written order falsely made or altered" (emphasis added). See
St. 1917, c. 275, § 6. Subsequent revisions of this provision
no longer include an explicit description of "uttering" as an
offense committed by persons not authorized to practice
medicine. Nonetheless, the revised versions retained language
that reflects an intent to punish persons who misrepresent
28
themselves as having the authority to issue prescriptions.25 We
thus conclude that a "false prescription" is one that falsely
purports to have been issued by an authorized practitioner.26
ii. Sufficiency of the evidence to sustain the
indictments. Even when viewed in the light most favorable to
the Commonwealth, there is no evidence that either defendant
deliberately appropriated false prescribing authority. It may
be that, technically, Miller "altered" the prescriptions. There
is no evidence, however, that Miller believed that she was
exceeding the bounds of Stirlacci's authority. Stirlacci, of
course, neither forged nor altered the prescriptions; the
signature was his, and he directed Miller to fill in the rest.
It also is relevant that the prescriptions at issue were
renewals of ongoing treatment, as opposed to entirely new
prescriptions. Because the prescriptions were renewals, Miller
25For example, G. L. c. 94, § 203 (4), (5), as appearing in
St. 1957, c. 660, provided that "[n]o person shall make or utter
any false or forged prescription," but separately provided that
"no person shall, for the purpose of obtaining a narcotic drug,
falsely assume the title of . . . a manufacturer, wholesaler,
pharmacist, physician, dentist, veterinarian, or other
authorized person."
26To be clear, we are not suggesting that a practitioner
never could utter a false prescription. For example, if a
practitioner were to issue a prescription for a substance the
practitioner was not formally authorized to prescribe, or to use
credentials that were false, inactive, or assigned to another
practitioner, the practitioner would be in violation of the
statute.
29
simply had to rely on Stirlacci's prior prescription to complete
the new prescription form. She did not engage in any "new"
medical decision-making, thereby acting entirely within the
scope of Stirlacci's genuine prescribing authority. Although
not present, Stirlacci thus effectively dictated the substance
of the prescription by virtue of his prior decision to authorize
treatment. In sum, each prescription in the present case was
presented as having been issued by Stirlacci, and was, in fact,
issued by him. The prescriptions were not "false" because
Stirlacci authorized their issuance on the basis of his genuine
authority to prescribe the indicated drugs. We thus conclude
that the indictments under G. L. c. 94C, § 33 (b), properly were
dismissed.
d. Submitting false health care claims in violation of
G. L. c. 175H, § 2. We next consider whether there was probable
cause to indict the defendants for submitting false health
claims under G. L. c. 175H, § 2. The Commonwealth contends that
the records of twenty-two patients establish probable cause that
the defendants knowingly made false statements by using billing
codes that would indicate to insurance companies that Stirlacci
had seen the patients. The judge agreed with respect to sixteen
patients. We conclude that there was probable cause with
respect to twenty of the twenty-two counts against each
defendant.
30
General Laws c. 175H, § 2, makes it a crime "knowingly and
willfully" to make a false statement or to misrepresent a
material fact in an application for payment of a health care
benefit. Because establishing probable cause requires
sufficient evidence of all the elements of an offense, see
Moran, 453 Mass. at 884, we first must consider whether there
was probable cause that the defendants submitted false
statements and, if so, whether they did so knowingly.
i. Probable cause that the defendants made false
statements. "False," in this context, means "wholly or
partially false, fictitious, untrue, or deceptive." See G. L.
c. 175H, § 1. According to the Commonwealth, there was probable
cause to find that the defendants made false statements by
submitting claims to insurance providers using billing codes
indicating that the patients had been seen by a doctor. We
agree.
Providers use a standardized system of procedure codes to
classify the services provided to a patient when billing that
patient's insurer. See United States v. Singh, 390 F.3d 168,
177 (2d Cir. 2004). Federal cases enforcing similar false
health care claim provisions have determined that the use of an
improper procedure code can constitute a "false statement" where
it results in a service provider seeking reimbursement at a
greater rate than the provider otherwise would have. See id.
31
at 177, 187-189 (evidence of health care fraud where doctor told
nurse to bill her services using procedure codes that required
doctor's involvement); United States v. Larm, 824 F.2d 780, 782-
783 (9th Cir. 1987), cert. denied, 484 U.S. 1078 (1988)
(sufficient evidence of false statement where defendant used
procedure code implying medical examination took place despite
availability of code that more accurately captured minimal
services actually provided).
Here, the grand jury were not provided with an explanation
of medical billing procedures. They instead had two primary
sources of information to use in determining whether the
defendants made false statements: patient records showing a
billing entry on a date when Stirlacci was in Kentucky, and the
trooper's testimony regarding the significance of those
documents.27 We therefore consider whether the grand jury
reasonably could have interpreted the patient billing records,
with the aid of the trooper's testimony, as false.
From the billing entries alone, the grand jury could have
inferred that patients were billed for an office visit on a date
when Stirlacci was in Kentucky, and that Stirlacci was listed as
27For certain patients, there also were documents from the
patients' insurance providers that presumably corroborated the
data in the billing statement. In most cases, however, these
documents lacked sufficiently explicit links to the billing
entries, and the State police trooper did not provide any
detailed explanation of how to interpret them.
32
the service provider. Absent more, however, this information
would not amount to a false statement, because the grand jury
also knew from the telephone calls that the renewals were issued
to patients who visited the office, and that Stirlacci was the
patients' doctor. The Commonwealth provided no additional
explanation of medical billing procedures that would have
allowed the grand jury to determine that the billing entries
falsely implied that Stirlacci was present.
The grand jury, however, also could have relied on the
trooper's assertion that the patients' billing records indicated
that they had been seen by Stirlacci. Although the judge
correctly observed that the trooper did not consistently
describe each patient's records as documenting a visit with
Stirlacci, the trooper twice made more general statements that
records for all the patients indicated that the patients had
been billed for visits with Stirlacci.
Thus, we conclude that the grand jury could have credited
the trooper's testimony that billing entries in the patient
records for the relevant time period implied Stirlacci's
presence. Upon reviewing the patient documentation that
indicated billing entries on dates when Stirlacci was in
Kentucky, the grand jury thereby could have inferred that the
defendants made false statements. We note, however, that the
evidence submitted to the grand jury did not include billing
33
records for two patients;28 accordingly, there was insufficient
evidence of a false statement for two of the twenty-two counts
against each defendant.29
ii. Probable cause that the defendants acted knowingly.
The Commonwealth also was required to establish probable cause
that the defendants made the allegedly false statements
"knowingly and willfully." See G. L. c. 175H, § 2. "A
defendant's intent is 'not susceptible of proof by direct
evidence, so resort is frequently made to proof by inference
from all the facts and circumstances developed at trial'"
(citation omitted). Commonwealth v. Pike, 430 Mass. 317, 321
(1999). Prior cases in this area indicate that we can discern
the requisite intent from deliberate misconduct.
28The defendants' argument that the inability to
differentiate between the defective indictments requires
dismissal of all of the indictments, under Commonwealth v.
Barbosa, 421 Mass. 547 (1995), is misplaced. In that case, the
grand jury returned a single indictment that could have applied
to two different alleged instances of criminal conduct. Id.
at 550. Here, the grand jury were presented with records for
twenty-two patients and returned twenty-two indictments; there
is thus no question as to which transactions the grand jury
intended to indict. The remaining question simply is which
counts of the indictment match which patients, a determination
that is largely an administrative matter.
29Exhibit no. 12 does not include any billing data.
Exhibit no. 14 does not include any billing records; it does
include what appears to be insurance documents indicating a
payment, but the information is insufficient to link the payment
to a specific patient.
34
In Pike, we affirmed a conviction of submitting false
Medicaid claims where there was evidence that the defendant, who
described himself as "the local drug pusher," id., "furnished
prescriptions which he knew were illegal and would serve as the
basis of claims for Medicaid payments."30 Id. at 322-323. The
deliberate violation of prescribing rules was sufficient to
establish that the defendant acted "knowingly and willfully."
Federal cases concerning similar false health care claim
provisions further demonstrate that the fact that a falsehood
stems from a deliberate violation of established rules can
support the inference that the false statement was made
knowingly. See Singh, 390 F.3d at 177 (sufficient evidence of
knowingly false statement where defendant was aware that his
chosen billing code required physician's involvement based on
explicit language on billing form); Larm, 824 F.2d at 782-783
(sufficient evidence of knowingly false claim where defendant
previously had been informed that he was using improper codes).
Here, there was evidence that both defendants were aware
that the nurse practitioner had told Miller that she should not
be billing when patients had not been seen by a medical
30The defendant in Commonwealth v. Pike, 430 Mass. 317, 322
(2008), was convicted under G. L. c. 118E, § 40, which makes it
a crime "knowingly and willfully [to make] or [cause to be made]
any false statement" in connection with claims submitted to the
Massachusetts Medicaid program.
35
professional, and yet decided to continue submitting claims.31
In addition, Stirlacci's statement that the nurse practitioner
did not understand that self-employed doctors had to operate by
rules that were different from those for large medical practices
also could support an inference that Stirlacci was aware that
his and Miller's conduct was improper.32 Viewing the evidence in
the light most favorable to the Commonwealth, we conclude that
the grand jury reasonably could have inferred that the
31The defendants at one point discussed the nurse
practitioner's concerns:
Miller: "I'm billing and she's [criticizing] me for the
way I'm billing. . . . I'm trying to . . . bring us
revenue."
Stirlacci: "Why is she [criticizing you for] billing?"
Miller: "Because I'm doing a 99213, and she's like, 'I
didn't even touch the patient. You can't do that. . . .'
I'm like . . . [w]hy are you [criticizing me for a] med
refill that I'm doing a 99213. Let me do it. I want to
get money for these . . . patients."
Stirlacci: "All right . . . . You know the standards to
bill, okay? And with patients coming in, yes. So . . .
just . . . do what you know is right . . . ."
32 Discussing the nurse practitioner, Stirlacci said to
Miller:
"I don't understand her . . . . [W]hen you're in the real
world and you're trying to see patients and you're self-
employed . . . you make the rules according to what works
for you and what works for the patient . . . . I agree
with some of her rules and regulations . . . , but other
things . . . [are] not going to work because it's not good
for business."
36
defendants were on notice that their billing practices falsely
could imply services that were not rendered. Moreover, the
grand jury could have inferred from Stirlacci and Miller's
conversations that they were sufficiently familiar with medical
billing practices to know which billing codes were appropriate.33
Therefore, the evidence presented, if not abundant, was
sufficient to establish probable cause that the defendants each
acted knowingly in making false statements.34
In sum, the Commonwealth established probable cause that
the defendants submitted false health care claims in violation
of G. L. c. 175H, § 2, for twenty of the twenty-two counts
against each defendant where the grand jury had documentation of
a billing entry. Because the individual indictments do not
refer to the patients by name, the Commonwealth shall, as the
judge previously ordered, submit a bill of particulars to
33The grand jury had evidence that Stirlacci told Miller to
"put in the 99212 . . . for the date that [patients] picked [the
renewal prescriptions] up, because they didn't see the doctor,
so it's down charged. So, it's a 92 or a 93. . . . Anything
and everything you can get in, get in." Although the grand jury
did not have this information, apparently there is a separate
code, 99211, that is appropriate to use when practitioners do
not see patients. See United States v. Singh, 390 F.3d 168, 177
(2d Cir. 2004).
34Miller contends that, as an employee following orders,
she could not have acted knowingly. This, however, is
contradicted by the evidence that Miller disregarded the nurse
practitioner's concerns and expressed a determination to have
claims reimbursed.
37
clarify which indictments require dismissal. See Mass. R. Crim.
P. 13 (b), as appearing in 442 Mass. 1516 (2004) (court may
order prosecution to file bill of particulars on its own motion
during time allotted for pretrial proceedings, or at any such
time as judge may allow).
3. Conclusion. There was sufficient evidence to indict
Stirlacci for twenty-six counts of improper prescribing in
violation of G. L. c. 94C, § 19 (a), and those counts should not
have been dismissed. All the counts against Miller under G. L.
c. 94C, § 19 (a), shall be dismissed with prejudice. The counts
against both defendants for uttering false prescriptions under
G. L. c. 94C, § 33 (b), shall be dismissed without prejudice.
Finally, there was sufficient evidence to indict both defendants
for twenty counts each of submitting false health care claims
pursuant to G. L. c. 175H, § 2. On remand, the Commonwealth
shall submit a bill of particulars so that a Superior Court
judge may determine which of the counts should be reinstated
against both defendants, and which two counts must be dismissed
without prejudice. The matter is remanded to the Superior Court
for further proceedings consistent with this opinion.
So ordered.