Office OF STATE OF GEORGIA
TYRONE CECIL MALLOY,
Petitioner,OSA-H-DCH—PROP-103281 | 44 Teate
Agency Reference No.: 10-060
GEORGIA DEPARTMENT OF COMMUNITY HEALTH
Petitioner, a Georgia Medicaid provider, (hereinafter "Provider") appeals adverse agency action withholding Petitioner's Medicaid Number per notices issued on March 12, 2010, and Apri1 14, 2010. At a hearing on July 26, 2010, Petition appeared "þro se" and Tara Dickerson, Esq- represented Respondent.
Per medical confidentiality requirements, -Respondent's Exhibits AA through ZZ and Fiscal Data Parts I and II were submitted under seal and shall remain under seal.
For reasons indicated, Respondent's withholding of Petitioner's Medicaid Number is REVERSED.
11. Findings of Fact
1. Per notice issued on January 25, 2010, Respondent's Program Integrity Unit conducted a comprehensive utilization review of services billed to and paid for by the Medicaid Progaxn at Old National Gynecology, Petitioner's facility. The noüce indicated that a review team would arrive on January 27, 2010 and would review 75 member records for services rendered from October l, 2008 through January 15, 2010.
2- As indicated in the January 25, 2010, notice, a review team consisfng of Wylene Moore, a registered nurse who is a compliance auditor, and three others arrived on January 27 and conducted the review during which they gathered records and interviewed Petitioner's employees that were present- (Testimony of Cathy Wamer, Petitioner's office manager; Testimony of Wylene Moore, compliance auditor, Exhibits AA through ZZ and 1 through 45).
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3- The review showed that patients routinely presenting themselves on an office questionnaire regarding purpose of visit as seeking an 'abortion" or a often submitted to lab tests and ultrasound examination on the same day that an abortion procedure was completed. (Testimony of Wylene Moore, compliance auditor, Respondent Exhibits AA through ZZ and 1 through 45; Fiscal Data Parts I and
4. Every patient must undergo the same lab tests whether they are seeking an ab01tion or are simply seeldng preg2ancy confirmation. If preg2ancy is confirmed, the pafient must undergo must undergo the ultrasound examination- (Testimony of Pefitioner; Petitioner's Exhibit 6).
5- Petitioner utilizes a pregnancy verification form that requires completion of lab test results and the ultrasound that is forwarded to the patient's counselor, who cerffies that the patient has been informed of the diagnostic tests performed and notes in bold letters whether the patient elects to terminate pregnancy or continue the preglancy. If terminating the paüent is clearly informed that Medicaid does not pay for elective terminaún and that the patient may undergo addffional counseling and terminate either at Petitioners facility or another facility of her choice. Despite a patient's when filling in the initial questionnaire, it is the decision at this juncture that is controlling- (Testimony ofPetitioner; Respondent Exhibit 6).
Ms- Moeviewed the review team's findings with management of the Prog-am Integrity Unit. Thereafter Ms- Shirley Benson, the Prog-am Integrity Director, issued the first notice on March 12, 2010 informing Dr. Malloy that reimbursement would be withheld until the requirements of 42 C.F.R- § 455.23 (c)(l) and (2) have been met. The notice informed Dr. Malloy of his right to Administraffire Review that he requested per letter dated March 16, 2010- (Testimony of Wylene Moore; Testimony of Shirley Benson; R-B; R-C)-
7. Upon Review, the Program Integrity Section determined, and subsequently notified Dr. Malloy per notice dated April 14, 2010, that the withholding of reimbursements would continue inasmuch as: (1) services that are billed to Medicaid are related to an aboffion; (2) documentafon supports a conclusion that such services were rendered in conjunction with an abortion; and (3) effective October 1, 2005, Section 9042, Part Policies and Procedures for Physician Services clearly states that reimbursement for abortion related services are not authorized unless the life of the mother would be endangered or if the mother was a victim of.rape or incest. Dr. Malloy filed the current appeal on May 7, 2010. (Testimony of Shirley Benson, R-D).
8. Petitioner operates a gynecology practice that performs abortions for approximately 50% of its clients- The availability of abortion services is adveffised and is offered at a discounted rate to Medicaid recipients. (Tesfmony of Cathy Warner, Petitioner's office manager; Tesffinony ofPetitioner)-
9. Peütioner has never billed Medicaid for abortion related expenses that require a cerffication of necessity for abortion (Torm DMA-311) that is required if the life of the mother would be endangered if the fetus were carried to term or if the mother was a
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victim of rape or incest. Also, Petitioner does not bill for surgical or non-surgical aboffion procedures. (Testimony ofPetitioner R-H; R-1).
10. Petitioner bills Medicaid for services such as lab tests and ult-asound related to evaluation and management when a patient presents herself with a diagnosis of amenorrhea to determine pregnancy and gestational status. Such lab tests plus the cost of the ultrasound for confirmed cost approximately $400.00 per patient. The lab test including a hematocrit, a urinalysis, and a pregnancy test are necessary whether or not such a patient thinks she is pregnant or suspects it and whether or not she enters Peftioner's office with intent to abort or terminate a pregnancy- For confirmed preglancies, an ultrasound is also performed. Such lab tests and ultrasound are routinely reimbursed by Medicaid for patients who do not elect to terminate pregnancies. Ultrasound is also required to comply with the implied consent provisions of O.C.G-A. 31-9A-3 (2010). (Testimoóy of Petitioner; Testimony of Cathy Werner, office manager;
11. Petitioner's billing pra±es are consistent with those of other physicians who perform abortions. (Testimony of Petitioner; Tesümony of Juaquita Calloway, MD; Testimony of Sarah Holmes, P effioner's executive director).
In response to an inquiry incident to Respondent's review, Ms. Holmes, Petiüoner's Executive Director, explained Peffioner's billing protocol regarding abortions to Ebony Joyner, one of Respondent's field representafives through Affiliated Computer Services, Inc. under confract with Respondent's Georgia Health Paúership. Ms. Joyner responded that Peffioner's protocol was correct and opined teas you mentioned, the patient will be covered for the office visit and tests; however, the procedure itself is not covered under the GA Medicaid program." (Testimony of Sarah Holmes, Petitioner's Executive Director; Testimony of Ebony Joyner, Territory 5 Provider Field Representative; Exhibits 7 and 8).
13- Petitioner has practiced medicine for 29 years and has never been the subject of any audit alleging misrepresentation or fraud- (Tesfmony of Petitioner).
Conclusions of Law
1. Respondent's Integrity Unit is responsible for uülizaún review of services ordered or furnished by providers- Part I, Policies and Procedures for Medicaid/Peachcare for Kids, Definitions, 42, p. 6. The Unit safeguards against unnecessary or inappropriate use of Medicaid/PeachCare for Kids services and excess payments, assesses the quality of those sen"ices, and ensures provision is made in accordance with State and Federal law, rules and regulations. Id. A provider must comply with all State and Federal laws and regulations related to furnishing MedicaidÆeachCare for Kids services. Part r, Policies and Procedures for Medicaid/Peachcarefor Kids, šection 106 P), p. I-I l-
2. Medicaid will not reimburse for abortion expenditures unless the aboråon is appropriately as necessary to save the life of the mother or to terminate a
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pregnancy resulüng from rape or incest- 42 CFR. §§ 441.202, 441.203, 441.206 and 457.475. Respondent's Policies and Procedures for Physician Services follows the Federal requirements and specifically references that such expenditures for ab01tions include associated services such as lab tests of ulfrasoll-nd studies- Part n, Policies and Proceduresfor Physician Services, Secüon 904.2, p. I-X-52 (2008) and p. IX-50 (2010). As applied, Petifioner has never billed for surgical or non-surgical aborfion procedures. Inasmuch as he has not performed abortions necessary to save the life of the mother or to terminate a pregnncy resulting from rape or incest, he has never submitted certification for reimbursement of abortion related expenses that are defined to include lab tests and an uh-a.sound-
3. Per conËactuaI terms between Respondent and providers, if there is a disageement "regarding, arising out of, or related to policy language interpretation," Respondent's determination of the disputed contract language controls and shall not be subject to appeal- Part I, Policies and Procedures for Medicaid/Peachcarefor Kids, Secfion 103. p- p. I-I (2008) and (2010)- While the definition of "expenditure of abortion" is clear within the context of. services under Section 904.2, it is not clearly enunciated for expenses related to abortions that are not necessary to save the life of the mother or to terminate a pregnancy resulting from rape or incest. However for a subsequent aboffion procedure, the parties agree that iniúl lab tests for a patient who presents herself with a diaglosis of amenorrhea to determine pregnancy and gestational status are appropriately billed to Medicaid. Part 11, Policies and Procedures for Family Planning Clinic Services, section 901, p. DC-I (2008) and (2010).
4. Whether or not a demand has been made for repaymeng Respondent may withhold reimbursement claimed by a provider if Respondent receives reliable evidence of fraud or willful misrepresentation concerning the provision of services under Medicaid/PeachCare for Kids. 42 CFR 455.23(a); Part T, Policies and Proceduresfor Medicaid/Peachcarefor Kids, Section 408 (B), pp. N-13 and 14. Further, Respondent is authorized to take additional adverse it finds necessary to secure compliance with Federal and State laws and regulations- Part I, Policies and Proceduresfor Medicaid/Peachcarefor Kids, Secfon 411, p. Y-149-
C as it is 5. The regulations do not define the terms 'fraud" or 'willful misrepresentation" applied in the regulations- - Part T, Policies and Procedures for Medicaid/Peachcarefor Kids, p. Definffions — 1 (2008) and (2010). By analogy, the tort of fraud requires a willffl misrepresentation of a material fact, made to indnce another to act, upon which such person acts to his injury. Avery v. Chrysler Motors Corp., 214 Ga. App. 602, 603604(1) (1994)- In all cases of fraud, hiowledge of the falsehood constitutes an essential element of the tort. Ida A fraudulent or reckless representation of facts as when they are not, if intended to deceive, is equivalent to knowledge of their falsehood even if the party making the representation does not know that such facts are false. Id- Willful misrepresentation of a material fact made to induce action to a person's injury is actionable; however, the mere concealment of a material fact will not support such an acûon unless it was concealed to induce another to act. O.C-G-A. § 51-6-2. While Respondent's determination of the services at issue was reasonable, the record does not
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support a conclusion that Peftioner willfully misrepresented a material factAccordingly, the evidence does not support a determinafion of fraud or willful misrepresentation under the Medicaid program.
Respondent's April 14, 2010, determinafion to place Peffioner on withhold for Medicaid provider number 000227741M is REVERSED
SO ORDERED, this 25th day ofAug-ust2010.
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