TARA DICKERSON: Do you see it, Your Honor, § 408?
JUDGE TEATE: I’m still trying to get to it.
TARA DICKERSON: It’s 4-13 if you look at the bottom of the page numbers, 4-13. Are you in Part II or you in Part - -
JUDGE TEATE: This is where it’s [indistinct] is
it not listed here as 408? Withholding payments? Is this not [overlapping conversation]?
TARA DICKERSON: Right. That’s what we’re looking at, you’re right, 408 would be - it’s – it’s toward the very end. You see 14?
JUDGE TEATE: That’s 106.
TARA DICKERSON: [Indistinct]
JUDGE TEATE: Here it is, yeah.
TARA DICKERSON: Right.
JUDGE TEATE: Okay, I’ve got that.
TARA DICKERSON: I was going to [chuckling] - -
JUDGE TEATE: Okay.
TARA DICKERSON: - - 408. You have it, Your Honor?
JUDGE TEATE: Yes, I have it. [Indistinct]
TARA DICKERSON: Oh, okay. I didn’t even see it on the page. Could you share with the Court the policy and procedures related to - -
SHIRLEY BENSON: Okay, 408, Part I, in the Manual states that the Division may withhold reimbursement claim(sic) by any provider whether or not a demand has been made for repayment for any of the following reasons. The Division reasonably believes that the provider may [indistinct] other plans or device, seek to avoid repayment or repaying a debt owed. The Division receives reliable evidence of fraud and willful misrepresentation concerning the provision of services under Medicaid/PeachCare for Kids.
TARA DICKERSON: Okay. And with regard to this particular case, what particular provision did you use to withhold the actual payment?
SHIRLEY BENSON: As far as, uh, liable repre – um, misrepresentation concerning a provider.
TARA DICKERSON: And you believe that was willfully done, is that correct?
SHIRLEY BENSON: Correct.
TARA DICKERSON: Okay. And, Your Honor, for the record, we do want the Court to know that we have provided the Court with Part I from the October 1, 2008, and also the Part I – Policy and Procedures from January 1, 2008, and the Court will note that there have been no revisions during that time with regard to any changes of that section. And we also provided the Court with, um, Part II – Policy and Procedures, uh, from October 2008 and January 1, 2010, that also, for our purposes, doesn’t reflect any changes in the [overlapping conversation].
JUDGE TEATE: Okay. Official notice is taken of all those provisions.
TARA DICKERSON: Thank you, Your Honor. Let’s
look at Part II – Physician Services. Here we go. All right, Part II [indistinct] over here. And could you look at the actual section from the (and I want to make sure we got the right) – it’s gonna begin on R-H, section R-H – I mean, Exhibit R-H, which is the October 1, 2008, § 904, which is the section that you noted which is the actual policy that you quoted – Service Restrictions – and that’s gonna be on 9-51, page 9-51.
DR. MALLOY: Okay. [Overlapping conversation]
TARA DICKERSON: 9-52, actually.
DR. MALLOY: [Indistinct] see where you are, please?
TARA DICKERSON: Yeah. Looking at [indistinct] - -
DR. MALLOY: Right.
TARA DICKERSON: - - Policy and Procedures.
DR. MALLOY: [Indistinct]
TARA DICKERSON: [Indistinct] we’re looking at [indistinct; pages shuffling] Part II. Here you go. And what page did I say we were on?
JUDGE TEATE: 9-52.
TARA DICKERSON: Fifty-two, okay. [Indistinct] § 9 [overlapping conversation].
DR. MALLOY: So it’s Part II, okay.
TARA DICKERSON: Yeah. [Indistinct] And we’re looking at the October 2008 Manual first.
DR. MALLOY: [Indistinct; pages shuffling]
TARA DICKERSON: That’s January.
DR. MALLOY: [Indistinct]
TARA DICKERSON: October. [Indistinct] 904. There you go. [Indistinct] Service Restrictions.
DR. MALLOY: Okay. Okay, go ahead. Okay, got you. All right, thank you.
TARA DICKERSON: Section 904.2 states what? And this is under the section entitled Service Restrictions, correct?
SHIRLEY BENSON: Right. That’s correct.
TARA DICKERSON: Yeah.
SHIRLEY BENSON: [Sighing; pages shuffling] 902 – 904.2 states, In accordance with federal regulation and the recent Congressionally-enacted revision of the Hyde Amendment, the Division will reimburse for abortions performed on Medicaid-eligible patients if the life of the mother would be in danger if the fetus were carried to term or if the mother was a victim of rape or incest.
TARA DICKERSON: And with regard to the policy and procedures at issue, is this – when was this revision actually made? Could you go back and tell
the Court? Uh, 904.
SHIRLEY BENSON: It was made, uh, April - -
TARA DICKERSON: Of 2000-what?
SHIRLEY BENSON: - - 2004.
TARA DICKERSON: Okay. All right. And [indistinct] no other questions at this time, Your Honor.
JUDGE TEATE: All right. Cross-examination?
DR. MALLOY: Uh, yes, sir. [Indistinct conversation in background] believe I have everything. Good morning, Ms. Benson.
SHIRLEY BENSON: Good morning.
DR. MALLOY: Uh, [clearing throat] I believe your title is the Program Director of Program Int – Program Integrity - -
SHIRLEY BENSON: Integrity.
DR. MALLOY: - - Division, okay.
SHIRLEY BENSON: Correct.
DR. MALLOY: And so you received correspondence from me concerning, um, the, um, withholding of my Medicaid number she, uh, mentioned the – she showed you the letter [indistinct]?
SHIRLEY BENSON: Yes.
DR. MALLOY: Okay. Um, and let me make sure I
understand. You came about sending me the letter
because the results of the audit?
SHIRLEY BENSON: That’s correct.
DR. MALLOY: Okay. All right. As far as – well, have you ever withheld my number – in – in your system, does it show that my number’s ever been withheld before?
SHIRLEY BENSON: Not to my knowledge.
DR. MALLOY: Okay. Um, have you ever withheld or your Department withheld the Medicaid number of any other GYN practice where abortions have been performed?
SHIRLEY BENSON: Not to my knowledge.
DR. MALLOY: Not to your knowledge? Okay. Now, uh, I know people have been talking about for related services – abortion-related services. Um, if I – I think under the – you’re talking about Part II and different parts of the policies and procedures for physicians, um, you are aware of Part II, Chapter 900 – Scope of Services, uh, under Family Planning. If – if, Your Honor, I would like to, if I could [indistinct] and I’ll try to highlight so we won’t have to go through this [indistinct] one. I’m sorry.
SHIRLEY BENSON: That’s [indistinct].
DR. MALLOY: I’m sorry. I didn’t [indistinct]
it.
SHIRLEY BENSON: Yes, thank you.
DR. MALLOY: And if you – if you notice, um, on the top right under that very first paragraph, um, it states (unfortunately, the copy’s [indistinct]), it states – well, if you just – just read that first paragraph for – for the Court?
SHIRLEY BENSON: Reference Family Planning?
DR. MALLOY: Yes, uh-huh.
SHIRLEY BENSON: Okay. Family planning services are provided to eligible Medicaid members who wish to prevent pregnancy, plan the number of pregnancies, plan the spacing between pregnancy(sic), or obtain confirmation of pregnancy.
DR. MALLOY: Okay, thank you. [Indistinct] So in and – and I know you’re – I know you’re the Program Integrity Director; you – you’re not a nurse, um, but I know you’re – you’re – you’ve been exposed to a lot of this. In determining confirmation of pregnancy, there are certain tests that are done – that are routinely done. Um, are you aware of that?
SHIRLEY BENSON: Yes, I am.
DR. MALLOY: Okay. So the fact that the tests are performed for confirmation of pregnancy which are similar or the same as those that might be utilized for even initial obstetrical care or for someone who wants to terminate a pregnancy, okay, it doesn’t mean that all of those procedures are abortion-related procedures. They’re basically - -
JUDGE TEATE: Sir, let me caution you again - -
DR. MALLOY: Oh, I’m sorry, sir.
JUDGE TEATE: - - that, I mean, this is not the time for you to present testimony.
DR. MALLOY: Sorry.
JUDGE TEATE: It’s time for you to question her regarding [overlapping conversation] her testimony.
DR. MALLOY: Okay. I’m sorry. Is it fair to say that these procedures could also be done for patients who are maintaining pregnancy – having the initial obstetrical care? The – the procedures that you’re saying that are abortion-related, could they be for patients who are planning to maintain a pregnancy?
SHIRLEY BENSON: A few of these.
DR. MALLOY: Oh, okay. Which procedures that I did would not be those that you would see for someone who wants to retain a pregnancy?
SHIRLEY BENSON: Well, I stand corrected on one thing. Maintaining pregnancy, you would – let’s say in the beginning of a pregnancy, you would do a hematocrit, you would do the pregnancy test.
DR. MALLOY: Uh-huh.
SHIRLEY BENSON: That is to determine pregnancy.
DR. MALLOY: Okay. Is that all that you will do?
SHIRLEY BENSON: Initially, to determine pregnancy?
DR. MALLOY: Okay. So - -
SHIRLEY BENSON: Vaginal ultrasounds are basically done further in like the second trimester or third trimester.
DR. MALLOY: Okay. So are you saying that the determination of pregnancy is only reliable based on a pregnancy test [indistinct]?
SHIRLEY BENSON: No, I wouldn’t say that.
DR. MALLOY: So is obtaining an ultrasound within the standard of care for determining the length of a pregnancy?
TARA DICKERSON: I’m gonna object, Your Honor. She’s not a medical expert.
DR. MALLOY: Okay. I’m sorry.
JUDGE TEATE: All right, sustained.
DR. MALLOY: Okay. A – a pregnant [indistinct] a pregnancy test is used to determine if someone is pregnant, yes or no?
SHIRLEY BENSON: Correct.
DR. MALLOY: Would a pregnancy test be able to
tell you how far along that person is in the
pregnancy?
SHIRLEY BENSON: No.
DR. MALLOY: So even though you’re not medical, you would agree that some other test might be in order to determine the length of a pregnancy?
SHIRLEY BENSON: Yes, to prove gestational age.
DR. MALLOY: Yes. And you would agree that that, in itself, may have some bearing on what the person might decide to do with that pregnancy?
TARA DICKERSON: Objection, Your Honor.
DR. MALLOY: Okay, sorry.
TARA DICKERSON: Speculative.
DR. MALLOY: Sorry.
JUDGE TEATE: All right, you’re withdrawing the question.
DR. MALLOY: Right.
JUDGE TEATE: All right.
DR. MALLOY: Sorry. Um, so when you received my letter stating that I didn’t feel – no, when you received my letter, you [indistinct; sighing]. Let me rephrase the question. So, um, am I to assume that I have violated, um, the – the rules by billing pregnancy-related services – abortion-related services?
SHIRLEY BENSON: Yes, on the same day as an
abortion.
DR. MALLOY: Okay. And as Ms. Dickerson is – has so nicely mentioned, that she had you read some of the policies and it made mention of in order to Medicaid to pay for an abortion, it needs to be for rape, incest or endangerment of the mother - -
SHIRLEY BENSON: That’s [overlapping conversation].
DR. MALLOY: - - if she maintains the pregnancy?
SHIRLEY BENSON: That’s correct.
DR. MALLOY: That’s correct. And are you familiar with, um, the form that I would have to submit if I were doing an abortion for those reasons?
SHIRLEY BENSON: Yes, I am.
DR. MALLOY: Okay. Um, there should have been two [indistinct]. Um, the form – are you familiar with that form?
SHIRLEY BENSON: Yes.
DR. MALLOY: Okay. And, for the Court, this form is the Certificate of Necessity for Abortion, DMA-311. Okay? And - -
TARA DICKERSON: Excuse me. May I have a copy?
DR. MALLOY: Oh, I’m sorry. Okay.
TARA DICKERSON: [Indistinct] a copy?
DR. MALLOY: Oh, I – I do. Okay. Well - -
TARA DICKERSON: [Indistinct] here you go.
DR. MALLOY: Yeah, you can [overlapping conversation]. Thank you. I’m sorry. And this form, could you just, um, read the – the top paragraph of this form?
SHIRLEY BENSON: This is a federally mandated form that must be completed and attached to all invoices containing claim [indistinct] submitted for reimbursement for abortion procedures and abortion-related procedures.
DR. MALLOY: Okay. Could you just read just the last six words?
SHIRLEY BENSON: For reimbursement for abortion procedures and abortion-related procedures.
DR. MALLOY: Okay. So am I correct that if I perform an abortion and related procedures the abortion that I am supposed to submit this form to justify why I’m doing that?
SHIRLEY BENSON: You can only submit this form and perform an abortion to be paid by the state if there’s life endangerment of the mother or due to rape or due to incest.
DR. MALLOY: Right, as it states at the bottom?
SHIRLEY BENSON: That’s correct.
DR. MALLOY: Okay. So this form is not submitted
if I’m just doing lab procedures that are some lab procedures that you would see with pregnancy determination or abortion?
SHIRLEY BENSON: That’s correct.
DR. MALLOY: This form is only to be submitted if I am doing an abortion and I’m seeking reimbursement for the abortion and abortion-related procedures?
SHIRLEY BENSON: Only for - -
DR. MALLOY: Yeah, uh, for those reasons mentioned.
SHIRLEY BENSON: - - the reason [indistinct].
DR. MALLOY: Yes. Okay, that’s what – I just wanted to make sure that that’s why we use this form. This form is so that – do you - -
JUDGE TEATE: Dr. Malloy? Dr. Malloy, I’m unclear why you’re taking this up since it’s not a matter in issue because it’s already been stated previously that there was no issue regarding the fact that you’ve not submitted any documentation, you know, for abortions.
DR. MALLOY: Well, the reason’s because they are stating that I was fraud and misrepresentation because I did submit claims for abortion-related procedures. And I’m trying to show that the abortion-related procedures are those procedures that I was seeking reimbursement along with the abortion, not separate. It’s – they’re not – and this form states that they are something that would be going together and they’re stating that because I did procedures that you would also see with someone having an abortion, that I violated the rules. And that’s why I’m showing that – and this is the only way you can get around that is to justify it because of the three reasons at the bottom, but it has to be abortion and abortion-related procedures. And so all I’m saying is that I’ve never filed this form and I was just asking her – I was just asking her: Does this form mean that you have to, in order to get reimbursed for these pro – for these reasons, to get reimbursed, I would have to submit this form? To get reimbursed for abortion, I would have to submit this form and – and check one of those boxes below.
SHIRLEY BENSON: That’s correct.
DR. MALLOY: And to get reimbursed for the related procedures with the abortion?
SHIRLEY BENSON: Correct.
DR. MALLOY: Okay. And that’s all. I just – I just – I just – just wanted to make sure - -
SHIRLEY BENSON: Uh-huh.
DR. MALLOY: - - that we’re on the same page as –
in order for the – in order for me – I guess what I’m saying is, in order to be compliant, I would have to have sent this form in?
SHIRLEY BENSON: If your abortions occurred - -
DR. MALLOY: Right.
SHIRLEY BENSON: - -for the reasons stated.
DR. MALLOY: Exactly. [Indistinct] and then I would be in compliance?
SHIRLEY BENSON: Yes.
DR. MALLOY: Okay. One other question, uh, and – and I’m – I know I’m rambling and I’m sorry. I apologize. If the abortion had been done on another day, would that – and yet those procedures had been done – would I still be in violation of the rules?
SHIRLEY BENSON: That would be up to a medical advisory group to make that determination.
DR. MALLOY: Okay, okay. Okay. Okay. But, as far as policy, um, and I – I’m not talking about the actual medical procedure; as far as policy, okay, I – I’m talking about as far as policy, if I did the what you’re calling abortion-related procedures and billed Medicaid, but I performed the abortion or someone else performed the abortion a day or two or a week or a month later, would I be – and I’m aware of the fact that they are having that abortion – would I be in
violation? As far as policy.
SHIRLEY BENSON: There could still be a strong possibility because it is abortion-related.
DR. MALLOY: So, okay, that being said, then if a patient comes to my office and I obtain the labs and sonograms that I did and they leave me and tell me they’re going to have an abortion, then I’m not supposed to file that claim because they told me that they’re going to have an abortion?
SHIRLEY BENSON: Hmm, I would not say that’s a true statement.
DR. MALLOY: Okay. Well, okay. I’m – I’m – I’m – I’m gonna see if I can clear this up.
SHIRLEY BENSON: [Indistinct]
DR. MALLOY: If a patient comes to my office and has abortion-related procedures - -
SHIRLEY BENSON: Uh-huh.
DR. MALLOY: - - and I perform the abortion that day [gap on tape] idea what the patient is going to do when they leave my office, okay, is it my obligation to make sure they don’t have an abortion because, if they do, then I should not file that claim with Medicaid? Or do I file that claim with Medicaid and hope that they don’t have an abortion? I can phrase
it again. I know it’s a long question.
SHIRLEY BENSON: No, I understood the question.
DR. MALLOY: Okay.
SHIRLEY BENSON: Because most offices file basically the claims within, hmm, within a week. Okay? So you were not aware that those services were going to be performed in the future, so, therefore, I cannot answer that question because I don’t think so.
DR. MALLOY: Okay. But [indistinct] okay. And, again, I know I’m probably repeating the same question, but if the patient comes to my office - -
SHIRLEY BENSON: Uh-huh?
DR. MALLOY: - - and I determine that she’s 16 weeks pregnant, and in the State of Georgia you cannot perform an abortion beyond 14 weeks in a private doctor’s office - -
SHIRLEY BENSON: Uh-huh?
DR. MALLOY: - - she says, Dr. Malloy, I’m going to have my abortion at X Clinic. Okay? I say, Fine. You know, I can’t control that. So she’s telling me she’s going to do that.
SHIRLEY BENSON: Uh-huh.
DR. MALLOY: Am I allowed to file for procedures that I already did to this Medicaid-eligible member for confirmation of pregnancy and gestational age? Am
I or am I not?
SHIRLEY BENSON: Yes, you can file that claim.
DR. MALLOY: Okay. Even though she has told me she’s going to have an abortion - -
SHIRLEY BENSON: That does not mean she will - -
DR. MALLOY: - - uh, this is true.
SHIRLEY BENSON: - - so, therefore - -
DR. MALLOY: Okay?
SHIRLEY BENSON: - - yeah. I answered.
DR. MALLOY: There – thank you very much.
SHIRLEY BENSON: You’re welcome.
DR. MALLOY: Okay. So if I find out - -
SHIRLEY BENSON: Uh-huh?
DR. MALLOY: - -that she does have the abortion – and I am going back to the [indistinct] change gestational [indistinct], if I find out that she does have the abortion - -
SHIRLEY BENSON: Uh-huh?
DR. MALLOY: - - and – and I’ve already submitted the claim because I didn’t know for sure, am – am I in violation for having submitted that claim because I found out that she did, indeed, have the abortion?
SHIRLEY BENSON: No, because at the time you saw her, you saw her to establish pregnancy [indistinct].
DR. MALLOY: Okay.
SHIRLEY BENSON: [Indistinct] uh-huh.
DR. MALLOY: Thank you. That being said, when a patient comes to my office and does not know if they’re pregnant or how far along they’re pregnant and I obtain laboratory data and an ultrasound – correct me if I’m wrong – I am establishing the gestational of her pregnancy?
SHIRLEY BENSON: A lot of that depends on the documentation consummation on why she is there.
DR. MALLOY: Okay. This [indistinct] this is correct. I agree with you. But – but I’m – but if anything states that she’s there to have hematocrit, urinalysis, pregnancy [indistinct] ultrasound, but nothing is mentioned on the claim form about an abortion, then no one – [indistinct] correct me if I’m wrong – does anyone have any idea what happens to that patient at that time?
SHIRLEY BENSON: No. That is why we conduct retrospective reviews.
DR. MALLOY: Okay. So I am not, at that point, so I – so what you’re saying, I’m in violation because after she has found out the gestational age, now that she has decided, after the fact, that she wants to terminate the pregnancy, that what I did up until that time was in violation?
SHIRLEY BENSON: It should’ve been rolled up into
the abortion itself.
DR. MALLOY: But - -
SHIRLEY BENSON: So, therefore, yes.
DR. MALLOY: Okay. So now you’re saying that if someone comes in to find out the gestational age, that I should send that information in along with an abortion?
SHIRLEY BENSON: No. That’s not what I said.
DR. MALLOY: No? [Indistinct] I’m sorry. Then could – could you repeat what you said?
SHIRLEY BENSON: Okay. Basically, since you are not billing the Department of Community Health for the abortion itself, the services of the abortion-related services should be rolled into the cost of that abortion, which neither are billable to the Department.
DR. MALLOY: Okay. But that’s if I am billing for services to go with the abortion. I know, if you’re – you’re putting them together, then I guess I’m – the question is - -
SHIRLEY BENSON: Okay. The reason we review medical records basically is to determine exactly what did happen. So reviewing the medical records speak for themselves. The medical records tell us what happened, what situations occurred, and what circumstances. So based on those facts, all the documentation which you made, that’s what makes the determination that they were abortion-related services.
DR. MALLOY: Okay. And I agree with everything you just said. But if I am not – if my relationship with them, if – if the relationship with Medicaid – this is the eligible recipient - -
SHIRLEY BENSON: Right.
DR. MALLOY: - - aids with her determining the length of her pregnancy, that’s where it ends; I don’t – I don’t bill anything beyond that. Okay? So if she decides autonomously to have an abortion - -
SHIRLEY BENSON: Uh-huh?
DR. MALLOY: - - that you will pull in anything done prior to that that could be something that would aid the physician in doing an abortion, whether it (well, then that’s a long question, right [indistinct]) whether - -
SHIRLEY BENSON: No, I understood the question.
DR. MALLOY: - - whether it’s done that day or whether it’s done a week, if you find out that it has happened, whether it’s done a month from now if you found out that it has happened - -
SHIRLEY BENSON: Uh-huh?
DR. MALLOY: - - so any time an abortion is done the physician is obligated not to submit any lab that might be something that you use because it’s a violation as an abortion-related procedure? Is that correct?
SHIRLEY BENSON: Abortions are not covered by the Department. Abortion-related services are not covered by the Department. A patient comes in, those related ser – I understand why you do the ultrasound, the pregnancy test, everything else. Fine. But those charges should be rolled into the abortion that you bill the patient, not the Department.
DR. MALLOY: Okay. Well, all right. Well, okay, then correct [indistinct] well, then, let me ask this question. Why should I roll those charges into an abortion when I know that Medicaid doesn’t pay for an abortion? Why – why – that – that would then be a violation.
SHIRLEY BENSON: But the patients are paying for the abortions. Am I correct?
DR. MALLOY: This – this is - -
SHIRLEY BENSON: Because Medicaid does not cover them.
DR. MALLOY: This is correct. Okay, so we go –
we’re going back to what I said.
SHIRLEY BENSON: Uh-huh.
DR. MALLOY: The patient’s coming in to determine the gestational age of the pregnancy or if they even are pregnant. They - -
TARA DICKERSON: That fact is not in evidence, Your Honor, that the patient is coming in simply for the purpose of determining gestational age of the child.
DR. MALLOY: Okay.
JUDGE TEATE: That’s sustained.
DR. MALLOY: Okay.
JUDGE TEATE: All right.