FRANKFORT - Lt. Gov. Steve Henry will not be indicted but apparently will be sued by a federal prosecutor for allegedly overbilling Medicare, officials said Friday.

        U.S. Attorney Steve Pence said he told Dr. Henry's attorney, Jack Smith, of his decision Friday.

Henry

        “We've advised him that the United States is not going to proceed with a criminal indictment against Dr. Henry,” Mr. Pence said in a telephone interview from Louisville.

        However, “we are going to pursue the matter civilly,” meaning a lawsuit, he said. “This is not an exoneration of Dr. Henry in any way.”

        Dr. Henry, who is an orthopedist and has been preparing to run for governor in 2003, could not immediately be reached for comment.

        He acknowledged 18 months ago that federal authorities were investigating whether he had improperly billed federal health-care programs.

        Mr. Smith said he and Dr. Henry “felt all along he had not committed a criminal act.”

        “I was certainly hoping this was what would happen,” he said, referring to Mr. Pence's decision.

        Mr. Pence said a review of evidence convinced him a civil case was preferable to an indictment. He said “a significant amount of money, in the tens of thousands if not greater,” was at issue.

        As lieutenant governor, Dr. Henry stayed on the faculty of the University of Louisville medical school and the staff of its hospital.

        Medicare, a federal health-insurance plan for senior citizens, prohibits doctors at teaching hospitals from billing if they are not physically present when residents - doctors in training - do the work.

        A federal grand jury last year subpoenaed travel records for Dr. Henry and his Kentucky State Police security detail. Mr. Smith said then that he assumed investigators wanted to compare Dr. Henry's travel records with his Medicare billings.

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