Posts Tagged ‘Lorin H. Mimless’

Defendant In Medicaid Fraud Case Responds To Elder Law Issues

MARCH 25, 2002 VOLUME 9, NUMBER 39

On January 12, 2002, Elder Law Issues reported on the Medicaid fraud conviction of Massachusetts doctor Lorin Mimless (“States Vigorously Prosecute Medicaid and Medicare Fraud”). After his conviction Dr. Mimless filed an unsuccessful appeal with the Massachusetts Court of Appeals. Dr. Mimless read our report, and wrote to address some of the issues raised by his conviction and appeal. With his permission we reprint his letter:

“While I did appeal because of the manner in which the trial judge managed the jury over the newspaper article that appeared during the second day of jury deliberation, my appeal centered on prosecutorial misconduct and the judge stating that he would never talk to the jury without both sides present. The decision did not adequately address the issue of prosecutors purposefully leaking excluded material to the press during deliberation. No one else could have given the reporter the information in the article except the prosecution. They were not put under oath when they denied wrongdoing. What made it even more ironic is that I observed and overheard what the prosecutor told the reporter.

“Five jurors (not several) had the newspaper with them when they arrived at court. The judge read the article, perhaps on his way to work. Why would the jurors not do the same? What would five minutes have made to allow the defense to ask the jurors if they read the article. After a nineteen day trial, what juror is going to admit they read the article knowing if they admitted that to the judge, they would not be able to continue their deliberations.

“As far as willful blindness, the prosecution spent so much time creating stories about my lavish life style, would that have been enough to prove motive? Why the need for willful blindness? The expenditures described by the prosecution were contrived and flagrant lies. I never purchased any pornography nor did I own two homes in Rhode Island. I generated a lot of billings because I saw patients no one else would touch. Many were dual-diagnosed and needed to be seen briefly every week to control meds and prevent hospitalization. The times assigned to the codes were ridiculous and made-up just to make their spectacular claim, ‘Doctor bills for 50 hrs in one day.’ or ‘Dr bilks Medicaid while vacationing in the Carribean.’

“I had a busy psychopharmacological practice and worked many hours to see my patients. When the agents visited my office I told them if there were errors they mistakes in the billing but during trial much of that was excluded including business cards given to each of the secretaries “Do not bill on vacation”.

“I never trained anyone in billing. I hired a secretary initially because almost every bill I had submitted was being rejected. I hired my last secretary who made the most errors because she came highly recommended from an agency. After the first week I asked for a replacement. The agency begged me to keep her and waived the fee. She was friendly to my patients and insisted that she had experience in billing. I did not have the heart to fire her although I wish I had the brains.

“Doctors should be warned that if overzealous prosecutors can turn a civil case into a criminal one, they will do everything they can to get you convicted. They got me but I will continue to advocate for alternative mechanisms to determine fraud so that doctors who do not commit fraud but make errors do not get criminally prosecuted. Look at many of the cases like Patsy Vargo and others humiliated enough that they crawl away without realizing how they were railroaded.”

Dr. Mimless’ mention of Patsy Vargo refers to a Montana physician who was accused of “upcoding,” or charging for higher-priced services than those actually provided. Dr. Vargo’s criminal charges were dismissed by federal prosecutors without a trial.

States Vigorously Prosecute Medicaid and Medicare Fraud

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.

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