JANUARY 14, 2002 VOLUME 9, NUMBER 29

According to the federal government, as much as 10% of the funding for the joint federal/state Medicaid program is lost to fraud, mostly on the part of medical providers. The Medicare program is also deeply concerned about the possibility of fraudulent costs. Although both the Medicaid and Medicare programs aggressively investigate and prosecute fraud, few cases reach the appellate courts (and they are therefore seldom reported). The few trials that are reported can be attention-getters, as the case of Dr. Lorin H. Mimless illustrates.

Dr. Mimless was convicted in Suffolk County, Massachusetts on two counts of larceny and over 200 counts of Medicaid fraud. The charges were mostly based on overpayments as result of billings that indicated he saw patients for more than 14 hours a day. Last week, his convictions were upheld by the Massachusetts Appeals Court, Suffolk. Among other penalties, the doctor now faces one year in jail. He has also been disciplined by state medical boards in New York and Rhode Island, where his license has been suspended, as well as Massachusetts, where his license has been revoked.

Dr. Mimless appealed his Massachusetts convictions on several grounds, one of which was that trial publicity was mishandled by the trial court. Dr. Mimless claimed that Judge Vieri Volterra’s private communications with jurors regarding a story about the trial printed in the Boston Herald on its second day before the jury were improper because the judge acted in the absence of counsel, the parties, or a court reporter. The appellate court reasoned that the judge “could not be faulted for taking vigorous preventive action” by asking jurors about the Herald article, taking the paper from jurors who had copies and clipping out the trial piece.

Dr. Mimless also argued that ‘motive’ evidence regarding his personal expenditures — on luxury cars, expensive clothing, multiple homes — should have been excluded. Dr. Mimless claimed, too, that the judge’s “willful blindness” instruction to the jury — an instruction issued when a defendant appears to have purposefully avoided learning the facts of his situation — was improper. Evidence presented at the trial court demonstrated that while Dr. Mimless had in the past trained his staff in Medicaid billing procedure, he later hired secretaries with no billing experience and failed to correct staff billing errors. Commonwealth v. Mimless, January 9, 2002.

The Centers for Medicare and Medicaid Services (formerly HCFA) cites billing for over 24 hours in a day as one of the most common Medicaid rip-offs. Other common rip-offs include: billing for phantom patient visits; billing for goods and/or services not provided or old items as new; and paying kickbacks in exchange for referrals. For more information on Medicaid fraud, consider CMS’ website information at www.hcfa.gov/medicaid/fraud.

In Arizona, there are some 44 statutes dealing with health care fraud. The Medicaid Fraud Control Unit is headed by Assistant Attorney General Pamela D. Svoboda, who can be reached at (602) 542-3881.

Note: Dr. Mimless has responded to this report. Read his comments in the March 25, 2002, Elder Law Issues.