dissenting
Although I agree with the majority concerning the validity of the issuance of the search warrant, I must respectfully dissent to the extent that the majority holds that Healthscript, Inc. may be prosecuted for violation of an administrative rule.
I.C. 1-1-2-2 specifies: “Crimes shall be defined and punishment therefor fixed by *274statutes of this state and not otherwise.” (Emphasis supplied).
The general provision of I.C. 12-15-21-1 to the effect that a provider is considered to have agreed to comply with the Medicaid rules, may afford a basis for determining that the agreement has been breached by a rule violation, and perhaps permit termination of one’s status as a Medicaid provider. It does not, however, constitute a legislative pronouncement that violation of a rule is a criminal offense.
A claim filed in violation of I.C. 12-15 constitutes Medicaid Fraud. However, nowhere within I.C. 12-15 has the General Assembly proscribed a charge in excess of the “usual and customary charge.” That purported prohibition is contained only in the administrative rule 405 IAC 1-6-21.1. Although I.C. 12-15 contemplates promulgation of various administrative rules, it does not purport to criminalize a breach of the rules; nor does I.C. 12-15 itself limit charges to that which is “usual and customary.”
I.C. 12-15-24-1 appears at first glance to countenance conviction of a criminal offense for violation of a rule. It states that violation of a rule “constitutes prima facie evidence, for purposes of IC 35-Ji.3-Ji.-2, that the person or provider intended to deprive the state of part of the value of the money or benefits.” (Emphasis supplied). It is imperative that we acknowledge that I.C. 35-43-4-2 is the general Theft statute. It is not the Medicaid Fraud statute, I.C. 35-43-5-7.1 Had the General Assembly wished to incorporate the Medicaid Fraud Statute into I.C. 12-15-24-1, it could have done so. It did not.
Healthscript could have been charged with theft under I.C. 35-43-4-2 but again it was not so charged. See Beech v. State, 162 Ind.App. 287, 319 N.E.2d 678 (1974).5 Even were it otherwise, the violation of the rule is not itself the crime. It is but evidence of the crime of theft.
For the reasons stated, I would reverse and remand with instructions to grant the Motion to Dismiss.
. Although Medicaid Fraud might appear, at first blush, to be a species of the general crime of theft, it appears that the General Assembly intended the two crimes to be separate and distinct. This legislative intent is manifested, in part, by the fact that theft involving less than $100,000 is, under I.C. 35-43-4-2, a Class D felony, while Medicaid Fraud, involving less than $100,000 may be a Class C felony, i.e., for claims involving between $50,000 and $100,000.