The New Jersey State Insurance Act requires insurance companies to maintain a Special Investigative Unit (SIU) to investigate and report insurance fraud to the state. After the report has been made, the state must carry out its own investigation to determine whether a fraud can be prosecuted.
I State Of New Jersey v. Yvonne Jeannotte-Rodriguez, Marta I. Gal Van, Lisa Ferraro, No. A-4361-19, A-4371-19, A-4374-19, Superior Court of New Jersey, Appellate Division (August 25, 2021) The New Jersey Appellate Division was faced with three appeals, following the State's claim that the Court wrongly dismissed (without prejudice) an eight-point case against Lisa Ferraro, MD, Yvonne Jeannotte-Rodriguez and Marta Galvan. During the relevant time period, Rodriguez worked as a medical assistant at Dr. Ferrara's medical office, and Galvan was the office manager, working on invoicing.
The State alleged that Rodriguez was practicing medicine without a license; Dr. Ferraro and Rodriguez fraudulently invoiced for Rodriguez's services; and Galvan went with Rodriguez and Dr. Ferraro to conspire to commit this fraud. The state claims that it presented sufficient evidence to survive the dismissal and urges us to reintroduce
The indictment is the second attempt to prosecute the doctor and her assistant. The district court dismissed the indictment without prejudice and considered that it was "manifestly flawed in its failure to give any testimony before the grand jury to support the dates set forth in the indictment."
Dr. Ferraro knew that Rodriguez was not a licensed physician in the United States. Still, when he talked to patients, Dr. Ferraro referred to Rodriguez as "Dr. Rodriguez or Dr. Yvonne." Although Dr. Ferraro said "most of the time" she would enter the room to go through Rodriguez's impressions of the patient with the patient present, Dr. Ferraro acknowledged that there were times when she did not do so and instead submitted billing orders based solely on Rodriguez's exams and impressions. ['forservicesthatRodriguezperformedbutwhichtheofficeinvoicedinFerraro'snameapatienttoldMenendezthatRodrigueztreatedherwhenDrFerrarowasnotfyintheofficeByexaminingpatientrecordsMenendezclaimedthathecoulddistinguishbetweenRodriguezandFerrara'shandwriting
In dismissing the indictment, the trial judge identified three shortcomings in the jury.
- The prosecutor erroneously referred to evidence that was not presented to the jury by referring to "thousands of allegations" about health care fraud.
- The evidence presented by the State was insufficient. The court noted that Menendez's analysis was too speculative, as it consisted of "conclusions drawn from unfounded conclusions that led to further conclusions." There was no evidence that Rodriguez or Galvan received an economic advantage. And there was insufficient evidence regarding the scope of practice for a medical assistant.
- The indictment lacked sufficient specificity regarding the date of treatment and the names of the patients to give the defendants information and a fair opportunity to defend.
The Grand Jury plays a dual role under the Constitution: to determine whether there is a probable cause for a crime to be committed and to protect the innocent from unfounded accusations. Even if the jury is part of the court, a court of appeal will reluctantly and sparingly review the jury's actions to protect its independence.
A court may also act if the indictment does not clearly and in sufficient detail include a defendant of what he must defend himself against.
The most significant defect in the jury trial was the prosecutor's failure to adequately and correctly instruct the jury on what a medical assistant, as a licensed physician, can do and what activities interfere. on medical practice.
A physician may not delegate tasks that require medical assessment and assessment (although this may be easier said than done) or that interfere with tasks specifically assigned to other licensed professionals. The specific tasks a physician can delegate should be best defined by the legislator and professional regulators.
The requirement of "fair warning" is obvious. There are some things that are black or white. For example, the court logically assumed that it was "reasonably clear" that medical assistants are not allowed to prescribe medication or diagnose illness (as opposed to other licensed and specifically authorized healthcare professionals). However, the prosecutor did not instruct the grand jury to limit himself to such clear intrusions into drug practice. The prosecutor instead relied on the testimony of a witness, Horizon Blue Cross / Blue Shields fraud investigator.
Failure to clearly instruct the grand jury on the appropriate scope of a medical assistant's practice damaged the bills for fraud by fraud, health care fraud and conspiracy to commit health care fraud. The crux of the fraud and deception was that Dr. Ferraro sought compensation for the procedures and activities that Rodriguez performed, by incorrectly conveying that Dr. Ferraro performed them instead. Menendez stated that only licensed healthcare professionals had identification numbers to bill insurers for services.
Menendez's opinion lacked sufficient credibility to support the indictment. The "main purpose" of the prosecution is to enable a defendant to prepare a defense by adequately describing the prosecution's crime. In these circumstances, the State's claim that the crimes occurred "in January 2012 or approximately up to and including May 2017" failed to prosecute the alleged crimes or to enable them to defend themselves.
The prosecutor failed sufficiently to instruct the grand jury exactly what a medical assistant may do without interfering with the licensed medicine. And because the law does not clearly draw a line around a medical assistant's permitted activities, prosecuting someone for crossing the line may violate the right to a fair warning.
The prosecutor also erroneously referred to additional evidence that he did not present to the jury and presented a dubious analysis of how much money is involved in the charged crimes. And the indictment lacked sufficient details to give the defendants a fair opportunity to defend themselves.
SIU investigators are insurers, not police officers or investigators working for prosecutors. They are required by law to notify the state that fraud is suspected. The state is obliged, before requesting a prosecution, to gather evidence to support a criminal charge. The state of New Jersey relied on Menendez, an insurance investigator, whose findings point to fraud but failed to provide the grand jury with factual evidence. While it is often true that a grand jury will prosecute a ham sandwich, no court will allow the trial to proceed against the sandwich and that is why this prosecution failed.
© 2021 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to working as an insurance consultant specializing in insurance coverage, insurance claims handling, bad faith insurance and insurance fraud almost as much for insurers and policyholders.
He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance and claims management attorney and more than 54 years in the insurance industry.
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