UNITED STATES of America, Plaintiff-Appellee, v. Peter LARM, M.D., and Haruko Larm, Defendants-Appellants

824 F.2d 780 18 Soc.Sec.Rep.Ser. 513, Medicare&Medicaid Gu 36,438 UNITED STATES of America, Plaintiff-Appellee, v. Peter LARM, M.D., and Haruko Larm, Defendants-Appellants. No. 85-1348. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 13, 1987. Decided Aug. 12, 1987. Peter L. Yee, Honolulu, Hawaii, for plaintiff-appellee. Richard K. Perkins and Renee M.L. Yuen, Honolulu, Hawaii, for defendants-appellants. Appeal from the United States District Court for the District of Hawaii. Before WALLACE, KENNEDY and WIGGINS, Circuit Judges. KENNEDY, Circuit Judge: 1 Peter Larm, M.D., and his wife Haruko Larm, appeal from their convictions for violations of 42 U.S.C. Sec. 1396h(a)(1) (false statements in an application for payments in a federally-approved plan for medical assistance). We conclude there was sufficient evidence to support the convictions, and that the district court did not otherwise err. We affirm. 2 Dr. Larm is an allergist and was an approved provider of Medicaid Services under Hawaii's Medicaid Program from July 1979 to June 1983. Mrs. Larm was his office manager during that period. The Hawaii Department of Social Services and Housing administers…

Peter Larm, M.D., and his wife Haruko Larm, appeal from their convictions for violations of 42 U.S.C. § 1396h(a)(l) (false statements in an application for payments in a federally-approved plan for medical assistance). We conclude there was sufficient evidence to support the convictions, and that the district court did not otherwise err. We affirm.

Dr. Larm is an allergist and was an approved provider of Medicaid Services under Hawaii’s Medicaid Program from July 1979 to June 1983. Mrs. Larm was his office manager during that period. The Hawaii Department of Social Services and Housing administers the program, and the Hawaii Medical Service Association (HMSA) handles the claims. The HMSA claim forms have a coding system to allow for prompt, uniform determination of the services provided and the appropriate reimbursement. A code book contains a brief explanation of the service to be matched with the codes on the claim form.

In 1984 the grand jury indicted the Larms on ninety-eight counts of Medicaid fraud. Counts 1-84 (office visit counts) alleged that the Larms submitted claims to the HMSA for “office visits” although Dr. Larm neither saw the patients nor personally rendered the…

concurring in párt and dissenting in part:

I respectfully dissent from that portion of the opinion affirming the Larms’ convictions on the office visit counts. The Larms should not be criminally liable for making a false statement under 42 U.S.C. § 1396 (h)(a)(l) when the statement they made was literally true under HMSA’s ambiguous published billing codes.

The Larms used code 90040 to bill HMSA for nurse-administered allergy shots when *785 Dr. Lam was not in the office. This, the majority holds, is a false statement on an application for Medicaid because code 90040 requires that the physician personally have treated the patient. However, HMSA’s published guidelines defining code 90040 make no mention of the physician’s presence, requiring instead a “[b]rief examination, evaluation and/or treatment, same or new illness,” “including] a brief or interval history, examination, discussion of finding and/or rendering of service.” The Larms’ use of code 90040 was literally correct under HMSA’s definition. The administration of a shot is indisputably a “[b]rief ... treatment,” including a “rendering of service.”

I agree that an alternate code more closely tracked the type of service…