Dr. Tyrone Cecil Malloy claims an administrative law judge x,alidated his billings for pregnancy services such as ultrasounds and lab tests that precede abortions. Attorney General Sam Olens' office, fighting to continue a new area of enforcement, contends that federal and laws bar government funding for abortion-related procedures.

During oral arguments, the jusüces focused on the assertion by WIoys attorneys that the principle of collateral estoppel prevents relitigation of an issue that had already been decided by another court

"I'm troubled bythe idea that a doctor litigates an administrative case and prei.eils, and that's not enough to find out whether that doctor is in good standing or not," said Justice Harold N½lton. "At that point, there's been a pretty good determination of whether that doctor is in good standing.

In response, Senior AssistantAtorney General NancyAlstrom disputed definition of "pretty good." She said the administratiœ law judge's proceedings weren't thorough enough, later adding that the accusations in the doctor's indictment were separate from the administrative issues.

Justice David Nahmias asked WIoys attorney, M. Katherine Durant, to provide e)emples ofany other cases in which a ci\il determination precluded a criminal prosecution.

"l find a very heavy  nationwide, federal and state, to hold that an administrative proceeding is not collateral estoppel in a subsequent criminal proceeding," Nahmias said. 'The state doesnt have the same incentives to litigate in an administrati•æ hearing."

Durant told the justices that she couldntcite anysuch cases, but the same issue in the criminal case was extensively litigated before the administrative law judge, noting that the attorney general's office represented the state at that hearing.

WIoys pretrial appeal to the Supreme Court came after DeKalb County Superior Court Judge Cynthia Becker denied his claims that his indictment violated his rights against double jeopardy, unconstitutionally vague statutes and prejudicial language. He was indicted Dec. 8, 2010, on two counts of Medicaid fraud-

The attorney general's office has argued in courtfilings that the Hyde Anendment, which prohibits tax moneyfor electi'ue abortions, also applies to pregnancy services performed before an abortion. Päoy is not accused of charging Medicaid

2/6/13                                                                          DailyRqm: Abortion doctor s case goes before state high court

In addition to WIoys prosecution, the attorney general's office recently brought similar fraud charges against Dr. Andre Damian Williams that accuse him of billing the government $205,000 for abortion-related procedures. A spokeswoman for the attorney general has said these two cases are the office's first abortion-related Medicaid fraud indictments.

WIoÿs indictment alleges that he billed N½dicaid $132,000 over three years for patient office visits associated with electiv,.e abortions and $255,000 for ultrasounds that allegedly werent performed. Durant said at the Supreme Court hearing that WIoy performed the ultrasounds but made a one-digit coding error when submitting the bills.

Alstrom said the indictment was crafted to avoid issues that had been previously litigated. She said Administrati\..e Law Judge Steven Teate^ts Aug. 25, 2010, decision didn't address accusations of misbilling and charges for abortion-related office visits-

'The issues are different," she said.

Teate^ts ruling came from N'Þlloys challenge to the Department of Community Health's decision to withhold Medicaid payments to him because the department determined that the senices were related to abortions. The judge wrote that the department's procedures dont clearly enunciate whether aborüon e)qenditures exclude related procedures. He added that the health department had not proved its accusation of fraud, because it would have required the doctor's knowledge that his billing was false.

the high court on bnday, Melton said any overlap between Teate's ruling and the indictment could doom the prosecution's requirement in the Medicaid fraud statute, O.C.G.A § 494-146.1 (b)(2), to prove that a defendant "knowingly" falsified documents.

Alstrom, however, noted that the indictment was drafted ⁿto avoid anything that was litigated below, despite the fact that we do not think the administrati'.e law judge's opinion is binding."

Chief Jusüce Carol Hunstein summariæd the state's position as an argument that the adm inistrative law judge's decision was unrelated to the criminal case.

"So the state's position is basically this: that even though he would say it was for a particular procedure, it really wasnt. It was for an abortion. Is that correct?" Hunstein asked. "So therefore, the administrati've law judge's ruling would be irrelevant, is that correct?"

Astrom agreed with Hunstein's assessment

NtÞlloys lawyer, Durant, said the administrative law judgeS ruling addressed the e)act issues alleged in the indictment, the case was fullylitigated, and the state opted not to appeal-

'The A-J specificallyframed the issues in this case as to whether or not there had been fraud and wrongdoing," Durant said.

Nahmias showed concern about potential unintended consequences if the Supreme Court found that collateral estoppel applied. He asked whether district attorneys would have to start monitoring every fraud-related administrative hearing to determine whether potential crimes had already been litigated.

Durant responded by asking for a narrowly drawn opinion that addresses WIoys specific circumstances—an

e)åensivelylitigated case on the same issue later brought again by prosecutors in a different proceeding.

She cited the U.S. Supreme Court decision of Ashe v. Swenson, 397 U.S. 436 (1970), which said the U.S. Constitution's Double Jeopardy Clause guarantees that ^thwhen an issue of ultimate fact has been determined by a 'alid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit."

Nahmias said that even if the Supreme Court doesnt find collateral estoppel, the state would still have to lix.e with evidence of the administrative law judge's ruling at trial. Alstrom agreed, but she said she would hope the A-J's ruling wouldnt be admissible.

"If you're right factually, you prove it at trial," Nahmias said. "Normally ... in looking ata motion to dismiss an indictment, we dont let the parties give their '..ersions of the facts."