DISSENTING OPINION OF
WAKATSUKI, J„WITH WHOM NAKAMURA, J., JOINS
I respectfully dissent.
“A variance occurs when the proof introduced at trial differs materially from the facts alleged in the indictment.” United States v. Beeler, 587 F.2d 340, 342 (6th Cir. 1978). “The general rule that allegations and *347proof must correspond is based on two requirements: ‘(1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at trial; and (2) that he may be protected against another prosecution for the same offense.’” United States v. Phillips, 625 F.2d 543, 545 (5th Cir. 1980). (Citations omitted.)
‘“The evaluation of a claim of variance... involves application of a two-step analysis: first, to ascertain whether there was in fact a variance between indictment and proof, and second, to determine whether the variance was prejudicial.”’ Id. at 545 (quoting United States v. Canales, 596 F.2d 664, 670-71 (5th Cir. 1979)). “If there is only a single set of facts . . . , the variance is reversible error only if it has affected substantial rights, and it is not fatal unless the defendant could not have anticipated from the indictment what evidence would be presented at trial or unless the conviction based on an indictment would not bar a subsequent prosecution.” 3 C. Wright, Federal Practice and Procedure: Criminal 2d § 516, at 27 (1982). (Footnotes omitted.)
The evidence adduced at trial by the State did not differ materially from the facts alleged in the indictment. Dr. Lewin was called by the State to testify. He said that although someone else in his staff may have made the referral of Anatta B. to the appellant, he did not remember doing so and that he had no records of her indicating that she was a patient of his. The appellant called Anatta B. as a witness to specifically negate the State’s allegation that no referral was made.
The majority concludes “the jury apparently found that Dr. Lewin’s referral did not cover the June 2, 1983 therapy session, but did cover all subsequent therapy sessions. On this basis, Appellant was convicted of Count 19 and acquitted of counts 20 through 32.” This conclusion is speculative because the jury may have rendered the guilty verdict as to Count 19 on the basis of Dr. Lewin’s testimony and not on the basis of Anatta B.’s'testimony as the majority believes. Arguendo, the jury may have then relied on Anatta B.’s testimony in rendering verdicts of not guilty as to Counts 20-32 since in all likelihood a referral was obtained sometime after June 2, 1983.
On cross-examination by Mr. Yamamoto, the attorney for the State of Hawaii, the following answers were provided by the appellant:
Mr. Yamamoto: Now, when did you become a medicaid provider?
Appellant: I believe they granted that to me when I got - from *348the date of my license here on December 16, 1982.
Mr. Yamamoto: And when you became a Medicaid provider, you are aware that as a psychologist you could treat Medicaid patients only upon referral from a physician, is that correct?
Appellant: That’s correct.
Tr. August 23, 1984 at 10.
Appellant undeniably admits knowledge of the requirement placed on him by the Administrative Rules1 of the Dept, of Social Services and Housing in regards to providing psychological service under the Hawaii State Medicaid program. Any reasonable interpretation of § 17-749-15(a)(5) plainly informs one that a referral from a practicing physician must be obtained before providing psychological services. An interpretation of § 17-749-15(a)(5) that results in the inference that a later referral would also satisfy the requirement in the rule would render § 17-749-15(a)(5) totally useless and of no effect.
Appellant has not shown that the variance, if any at all, affected his substantial rights or that it was prejudicial. Nor does the record reveal that appellant was somehow unable to present his defense or that he was unjustly surprised by the evidence offered by the State at trial. Appellant, having failed to convince the jury on his defense to the allegation in the indictment, now claims that there is a fatal variance.
*349The evidence was substantial that no referral was made by Dr. Jack Lewin prior to June 2,1983, and to merely refer to it or label it as a “late” referral also does not create a fatal variance. Furthermore, I question the fairness of allowing the Appellant to rely on the referral (by Dr. Jack Lewin) to support his contention that a fatal variance occurred as to Count 19, while overlooking the fact that this same referral also enabled the jury to render verdicts of not guilty as to Counts 20-32.
1 would uphold the conviction.
§ 17-749-15(a) Psychiatric service and treatment.
(a) Psychiatric service shall be allowed where:
(1) It is provided under an individualized treatment or diagnostic plan which may be revised during treatment if necessary. Psychiatric service furnished without a planned program of therapy does not constitute treatment and is not reimbursable;
(2) There is a reasonable expectation that service will improve the patient’s condition. If the patient’s condition is not altered after the authorized outpatient visits in the initial six month period of treatment the frequency and number of visits requested may be reduced;
(3) A psychiatrist shall serve as a source of information and guidance when psychiatric service is provided by authorized mental health therapeutic teams;
(4) Drug management alone shall not be considered psychiatric care but shall be considered general medical care. Payments for drug management shall be made to:
(A) Authorized outpatient clinics for the cost of the drugs; or
(B) Psychiatrists at a general medical visit rate when accepting referrals for the purpose of prescribing psychiatric medications or evaluation of psychiatric medications; and
(5) Psychological service provided by an authorized psychologist shall be limited to patients that are referred to a psychologist by a practicing physician, and to providing only the service requested by the physician.