Congratulations to Nicholas Marshall and Jim Moir!  This is a story in the Union Leader that points out what a good defense can do.

Foreman says
jury was ‘appalled’ by Medicaid fraud case in which orthodontist was cleared

New Hampshire Union Leader

MANCHESTER — The foreman of the jury that cleared Manchester orthodontist
Nicholas Marshall of Medicaid fraud last month said most of the jury was
appalled at his felony prosecution.

On Oct. 23, a Merrimack County Superior Court jury found Marshall innocent of
45 felony fraud charges. His lawyer has said the allegations amounted to $781
in total.

The verdict ended a 10-month odyssey for Marshall, who initially faced more
than 200 charges, had his license temporarily suspended after a surprise
inspection, and lost his ability to treat Medicaid patients.

The foreman, Harry Kozlowski, said Monday that 11 of the jurors wanted to
clear Marshall right away. The jury deliberated for about four hours because
one thought Marshall acted guilty, he said.

“The majority of us were appalled at the state for bringing this case,” said
Kozlowski, a sports freelancer who sometimes writes for the New Hampshire Union
Leader. “Me personally, it struck me that someone was trying to earn a feather
in their cap.

“It looked like a show trial,” he said.

New Hampshire Attorney General Joseph Foster said the law — which requires any
amount of Medicaid fraud to be prosecuted as a felony — may need to be changed.

“I can imagine what a juror might feel when they see 45 indictments,” said
Foster, whose office is in charge of the Medicaid Fraud Control Unit. But
Foster said his prosecutors felt the indictments were necessary.

“I have great confidence in our prosecutors. I think they do a great job,”
Foster said.

Medicaid provides medical and dental care to the poor; its costs are split by
the state and federal government.

Medicaid expansion has been one of the signature accomplishments of single-term
Gov. Maggie Hassan, who is up for re-election today.

“The governor believes that we must be vigilant about stopping fraud in any
public program, but the attorney general has independent jurisdiction and
prosecutorial discretion in deciding what charges to pursue and litigate,”
Hassan press secretary William Hinkle said in a statement.

A spokesman for Health and Human Services Commissioner Nicholas Toumpas, who
oversees Medicaid in New Hampshire, referred a reporter to Foster.

Kozlowski said the courtroom prosecutors used buzzwords such as “thief,”
“stole” and “greed” in their arguments. But the issue ended up as a dispute
over what services should be part of a comprehensive bundle that Medicaid pays
for braces, he said.

Marshall would provide dental care, such as an X-ray for a cavity, for his
orthodontic patients, and the orthodontist believed such care fell outside the
orthodontic bundle, Kozlowski said. He said the prosecution brought no evidence
that Marshall intended to defraud Medicaid.

“Even if they were 100 percent correct, why are they charging felonies?”
Kozlowski said. “It’s like ‘Les Miserables.’ We were appalled.”

The prosecution was the first since a 2005 law that allows for criminal
Medicaid fraud prosecutions of doctors, hospitals, nursing homes and other
health care providers.

Karin Eckel, the director of the Medicaid Fraud Control Unit, said her unit
brought in $9.5 million in recovered billings, fines and penalties in 2013. She
said the unit has three attorneys, two investigators and a financial analyst.

She said her office does not track the costs of
individual prosecutions, such as the Marshall prosecution. But the
investigations are complex and involve large amounts of documents and financial
analysis, Eckel said.

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