Commonwealth v. Stein

¶1concurring.

¶2I cannot subscribe to the view that the term “office visit” is ambiguous or that it could mean anything other than a face-to-face encounter between a practitioner * and his patient in the practitioner’s office. This is clear whether or not the term was defined in the DPW manual. The mere fact that a definitions section was introduced in the manual on January 1, 1983, does not mean that the term was ambiguous prior to that time.

¶3I agree, however, that the procedure code, 90005, is too vague and ambiguous to form the basis of a criminal prosecution. Appellant billed for services performed under code 90005, believing that permissible services included “evaluations.” The department’s definition of code 90005 is “office visit, brief examination, evaluation and/or treatment.” Reading the definition of code 90005 in comparison with other procedure codes and their definitions, it appears that code 90005 covers office visits incorporating a Brief examination, evaluation or treatment. If the definition had been punctuated properly, it might have read “office visit: brief examination, evaluation or treatment.” This is the meaning ascribed by the trial court and by Superior Court, and other codes indicate that this is what the DPW manual meant. Examples are: 90110, explained as “Home visit, brief examination evaluation and/or treatment”; 90300, defined as “Skilled nursing facility visit, brief examination”; and 90301, explained as “Intermediate care facility visit, brief examination.” Thus, it appears that the manual intended to restrict the use of code 90005 to office visits during which the practitioner conducted a brief examination, evaluation or treatment of his patient.

¶4*147It is nevertheless grammatically reasonable, albeit barely, to interpret procedure code 90005 as including any one of four different kinds of procedures: treatments, evaluations, brief examinations, or office visits. The behavior of Dr. Stein in this case might conceivably be viewed as some sort of evaluation, and under the wording of the definition for procedure code 90005, his claim for reimbursement cannot be viewed as criminally sanctionable.

¶5In algebraic terms, one could understand code 90005 to require A, an office visit, combined with either B, a brief examination, C, an evaluation, or D, treatment. In other words, 90005 would require A + B, A + C, or A + D. The definition given in the manual, however, can be read to permit A or B or C or D, any one of which would satisfy the requirements of code 90005, without the need for an office visit.

¶6Although I think the term “office visit” itself is quite clear, the definition of procedure code 90005 is sufficiently ambiguous that it cannot support the criminal charges brought against Dr. Stein. I therefore concur in the result reached by the majority.