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'Lost perspective' cited as orthodontist cleared in Medicaid fraud case

By MARK HAYWARD
New Hampshire Union Leader

November 01. 2014 7:58PM
Orthodontist Nicholas Marshall at his practice in Manchester. Last week, he was cleared of 45 indictments of Medicaid fraud. (DAVID LANE/UNION LEADER)

MANCHESTER - In a trial that might have significant consequences for Medicaid in New Hampshire, a Manchester orthodontist was cleared of 45 felony counts of Medicaid fraud by a Concord jury last week.

Dr. Nicholas Marshall said he never did anything wrong, and he offered to refund the entire amount of the alleged fraud - $781 - to make the charges go away.

But Medicaid Fraud Unit officials insisted he plead guilty to the felonies, something Marshall refused to do because it would destroy his career, he said.

On Thursday, a Merrimack County Superior Court jury found him not guilty of all charges. Some of the 45 indictments involved amounts as small as $5, and the largest one involved $165, said his lawyer, James Moir of Concord. Marshall faced prison if found guilty.

"I'm of the opinion the Office of the Attorney General lost perspective regarding Dr. Marshall," Moir said.

Under New Hampshire criminal law, a theft is a felony only if the stolen property is worth $1,000 or more. But state Medicaid law makes any fraud involving Medicaid a felony, no matter the amount.

The case was the first-ever criminal prosecution for Medicaid fraud in New Hampshire, said Karin Eckel, director of the Medicaid Fraud Control Unit, which is part of the Attorney General's Office.

She would not respond to Moir's statement, nor discuss reasons for bringing multiple charges against Marshall.

"There was a thorough investigation," Eckel said. "There were charges brought by a grand jury that were brought to trial. The judge did not dismiss the charges, and it went to the jury."

She added that she respects the jury's verdict.

Medicaid is a jointly funded, federal-state health insurance program for low-income and needy people. It was expanded this year under Gov. Maggie Hassan.

Marshall's case took place as the New Hampshire Dental Society and state health officials are encouraging dentists to accept Medicaid patients, said James Williamson, executive director of the 750-member Dental Society.

"It probably did scare some people off," Williamson said.

The state official who oversees Medicaid dental services disputes that.

"I do not perceive any change in dentists' willingness to enroll as Medicaid providers in response to the prosecution of Dr. Marshall," Dr. Margaret Snow wrote in an email to the New Hampshire Union Leader. Snow testified against Marshall in the trial.

Marshall is a soft-spoken man whose mannerisms betray a hint of anxiety when he recalls the events of this year.

He said it made him feel good to provide braces and orthodontic care to Medicaid patients. The low Medicaid rates covered his office expenses, but he basically worked for free, he said.

"I got calls 'can you help my children?' I felt bad. They didn't have anywhere to go," he said.

Twice over the past 20 years, Medicaid auditors met with Marshall and his lawyer to dispute his billing practices, Marshall said.

Attorney General lawyers, who didn't understand dentistry, would listen and leave, and that would be the end of it, Marshall said.

But on Dec. 24, Marshall opened his mailbox to find 189 felony fraud indictments. Another 29 followed in February. He said they came without warning.

Then in April, the state Board of Dental Examiners performed a surprise inspection on his office and temporarily suspended his license over questions about sterilization practices.

Marshall stopped seeing Medicaid patients after that.

Prosecutors eventually dropped all but 45 charges; Eckel's office wouldn't discuss the reason for dropping the charges.

During the four-day trial, Snow was the prosecution's key witness. Marshall took the stand in his own defense.

Marshall said much of the case dealt with what is included in the one-price "bundle" that Medicaid pays for braces. He said he reads the regulations that the bundle price covers orthodontic care. If he takes a $5 X-ray to look for a cavity, that wouldn't be part of the bundle, he said.

His lawyer, Moir, said Marshall had two defenses: that Marshall was correct, but if he were incorrect, it was an honest mistake.

"If it's a mistake, it's not fraud. Fraud requires a criminal intent to steal," Moir said.

Marshall stressed he does not want to be critical of the Attorney General prosecutors. But he said he lost patients, and he still shudders when he thinks about what happened.

He could have spent the rest of his life in jail, he said. Now, he said, he has to rebuild a practice that suffered financially from the prosecution.

"It's indescribable, the emotional toll it takes on you," Marshall said. "They don't call to say 'Hey, we think you overcharged' and 'Repay us,' they indict you."

mhayward@unionleader.com


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