In March 2010, the GA Department of Community Health notified me that the Program Integrity Unit had conducted a comprehensive utilization review of services billed and paid for by the Medicaid program. The premise being that the practice at Old National GYN had committed a fraud by billing Medicaid for abortion-related services. My Medicaid number was withheld and I received no payments due to their investigation that alleged that I had committed fraud.
I filed an Appeal with the Office of State Administrative hearings. My argument was that under the Family Planning Services Guidelines per the Medicaid Policies, confirmation of pregnancy, which entails lab work, and a sonogram are permitted and reimbursed. We have a patient information form which DCH has approved that specifically states that Medicaid does NOT pay for abortions, and if she desires to terminate the pregnancy whether with our facility or somewhere else, she will be totally responsible for the costs.
During the course of the ALJ Hearing the Judge allowed testimony from Ms. Ebony Joyner a field agent for the DCH which affirmed that our billing practices were in compliance with Medicaid/Family Planning Services polices. Judge Teate also allowed the admission of an email sent to my Executive Administrator from Mr. Ibn Mohammad, another DCH Agent indicating again that billing practices at ONG met the standards prescribed by the regulations.
On August 26, 2010 at the conclusion of the Hearing, Administrative Law Judge Steven Teate stated to the attorney representative for DCH that they had not proven their case against me alleging fraud. Judge Teate based this on the testimony and evidence given by DCH Field Agents that appropriate billing guidelines had been followed, as well as testimonies by my Office Manager, Cathy Warner that the errors in coding for ultrasounds performed by ONG were an honest mistake on her part and no fraud was ever intended.
Judge Teate reversed the department’s decision to withhold Medicaid payments from ONG, and the Department of Community Health (the State) did not challenge the ruling. After the ruling and the admission that we had used the incorrect codes for ultrasounds, monies that had been withheld were finally refunded and no adjustment had been made to reflect the use of incorrect codes which would have reduced the payment for ultrasounds performed.
I continued my practice for more than a year believing this issue was resolved. The State Attorney General contended that charging Medicaid for what he deemed abortion-related services constituted fraud and proceeded to have Ms. Warner my Office Manager at ONG and myself indicted on two counts of Medicaid fraud on December 2011 in Dekalb County Georgia.
The indictment charged that Old National GYN unlawfully billed Medicaid $132,000.00 over three years for patient office visits associated with elective abortions and $255,000.00 for ultrasounds that allegedly were not performed. There was never any dispute that every patient had an ultrasound. The indictment made it sound as though we billed Medicaid and did not perform an ultrasound. The facts and the truth are that the code we submitted was an honest mistake, as admitted under oath at the ALJ hearing. This code did not match the ultrasound documentation that was in the patient’s chart. However, the AG’s office worded the indictment to make it appear as though NO ultrasounds were performed.
I have been a practicing physician in good standing since 1975. I attended Howard University, graduated from New York University and received my Degree in Medicine from The Johns Hopkins University School of Medicine. I completed my internship and residency programs at the Walter Reed Army Medical Center in Washington, DC. I served my country as a physician for decades after leaving Walter Reed, resigning from active military duty as a Lieutenant Colonel in 2000. I graduated from the Georgia State University School of Law in 1993. I am on the faculty of the Emory University School of Medicine, Department of OB/GYN as an Adjunct Clinical Professor. I have published several scholarly articles in the field of obstetrics and gynecology.
Prior to my incarceration on March 10, 2014 I was employed at Metropolitan Atlanta OB/GYN, CEO of the Menopause Center of Atlanta, Owner and Medical Director of Old National GYN, CEO and Medical Director of the Atlanta Center for Women’s Choice & Cheshire Bridge GYN, Medical Director for the Feminist Women’s Health Center. I am the Founder and CEO of the Soapstone Center for Clinical Research where I have been of performing clinical trials for pharmaceutical institutions research.
I was on staff at Dekalb Medical Center and Atlanta Medical Center (formally Georgia Baptist Hospital).
When I went to trial I believed the indictment would be tossed because of collateral estoppel, (double jeopardy) by virtue of the fact that the earlier Administrative Law hearing’s ruling was in my favor. Judge Cynthia J. Becker ruled that neither the Administrative Law Judge’s ruling nor the exonerating emails or DCH Agents testimonies would be admissible at trial. As a result of her decision, I appealed to the Georgia Supreme Court rejecting the state’s argument that the court was without jurisdiction to hear the matter at this juncture in the trial.
At Oral arguments before the Georgia Supreme Court, Justice Harold Melton said he was “troubled by the idea that a doctor litigates an administrative case and prevails, and that’s not enough to find out that the doctor is in good standing or not”. Presiding Justice Harold Thompson wrote for the court that my double jeopardy arguments, which both the court and my attorney framed as a question of collateral estoppel, were “persuasive in many respects”.
The Supreme Court ruled on February 5, 2013 that my case should go to trial. In the ruling, the court stated that I would have an opportunity to present my same arguments and evidence, which exonerated me at the ALJ Hearing.
Following the Supreme Court ruling, the Assistant District Attorney offered me a plea deal; admit guilt and repay the State for illegally obtaining monies and serve 15 years probation. This I could not do. I had not knowingly or willfully attempted to defraud the State. I had no reason to suspect otherwise given the time period covering the indictment. The allegations spanned a period from December 9, 2007 to on or about August 10, 2010. Why had the State never inquired about the billing procedures/codes in use? Old National GYN had been providing safe, legal abortion services under my ownership since 1993. I would not compromise my life’s work and License to practice medicine for what I believe was a conspiracy to compromise physicians still willing to performing abortion procedures.
I chose to rely on the Judicial system and a jury to hear the facts and evidence believing those facts and evidence would exonerate me of the allegations.
On March 10, 2014, I was convicted and sentenced to four years in prison under first offender status. I have no regrets for my decision to fight this conviction even though I spent 21 months in seven different Georgia State Prisons, an experience which defies description. I was prepared to seek vindication from the highest court in the land.
By the time I was given a date for my hearing for the Motion for a new trial with former Judge Becker’s replacement, Superior Court Judge Jean-Paul Boulee, I was both psychologically and emotionally exhausted. I informed my attorney’s that I needed the assurance that this nightmare would come to an end. I agreed to pay full restitution in an amount close to $400,000.00 even though the State was not entitled to this money, to gain my freedom.
On December 21, 2015 I was released from prison with plans to have my medical license reinstated so that I could return to my practice in Decatur, my teaching at Emory School of medicine and to resume my clinical research career.
I had no idea that there was a 2-year hold on the reinstatement application when the license has been voluntarily surrendered. Had I known I would have surrendered my license upon my conviction in March 2014, which would have made my eligibility for reinstatement effective March 2016.
The State won and I lost. The State anticipated that I would serve one third of my sentence, 16 months; I served 21 months. The restitution hearing would at the very least discarded the amount of money we were legally entitled to receive for ultrasounds. Instead the State received monies which it was not entitled to. They ruined my reputation, financially devastated me and put an unbearable burden and stress on my family.
I very much hope that I can regain some semblance of a normal life and continue my practice of medicine after suffering such a setback this late in my professional career.
Tyrone Cecil Malloy, MD