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A recent decision by the Georgia Court of Appeals poses “a real danger” to the state’s ability to prosecute Medicaid fraud, state Attorney General Thurbert E. Baker argued in a recently filed brief. The March 1 ruling by Presiding Judge Edward H. Johnson and Judges John J. Ellington and John H. Ruffin Jr. threw out a conviction against a doctor accused of overcharging the state for unnecessary drug tests on addicts. The judges held that the state’s lawyers failed to prove that the doctor, Michael Jon Kell, committed his crime in Fulton County, where the trial was held. Proper venue was in DeKalb County, the judges said, because that is where the state processes its Medicaid bills. Kell v. State, No. A01A2339 (Ct. App. Ga. March 1, 2002). Johnson, Ellington and Ruffin already have used their Kell decision to strike down a second Medicaid fraud conviction. On March 13, they repeated their reasoning in a decision that reversed convictions against a former Atlanta businesswoman, JoAnn Fletcher Cash. She was accused in Glynn County of billing Medicaid nearly $150,000 for psychotherapy services at a counseling service she owned, even though no psychologist worked at her company for much of the time it was in business. Again, the appeals court said the case belonged in DeKalb County. Cash v. State, No. A01A2371 (Ct. App. Ga. March 13, 2002). The state has asked the panel to reconsider both rulings. In one brief, Baker and Harrison Kohler, a senior assistant attorney general, argued, “There is a real danger that this court’s ruling will have the effect of curtailing the prosecution of cases of Medicaid fraud.” Holding all trials in DeKalb will require transportation for witnesses all across Georgia, they explained. And if the state ever were to outsource its Medicaid processing to an out-of-state company, it might be impossible to prosecute Medicaid fraud cases, they said. When he campaigned for his post in 1998, Baker said fighting Medicaid fraud was one of his top priorities. The state law department’s Internet site boasts that the Medicaid fraud unit — a joint effort of the attorney general, the Georgia Bureau of Investigation and the state auditor — has won more than 130 convictions and more than $35 million in fines since 1995. Two more Medicaid fraud convictions have been challenged on venue grounds, according to Baker’s office. OTHER CONVICTIONS STAND In the Kell decision, Ruffin wrote for the panel to uphold convictions against Kell for conspiracy to defraud the state, false writings and three counts of tax evasion. But the Medicaid fraud charge — for which Kell had been fined $50,000 — could not stand in Fulton County, Ruffin wrote. Ruffin cited a 1998 decision by the Georgia Supreme Court, State v. Johnson, 269 Ga. 370, that indicated that venue for illegal collection of medical assistance benefits would be the county where a false report was submitted. Ruffin noted that the state’s lawyers had argued that the discussion of Medicaid fraud in the Johnson decision — which dealt with making false statements, not Medicaid fraud — was only dicta. “We agree,” Ruffin wrote. “But the Supreme Court’s opinion offers guidance as to where an individual commits the crime of improperly obtaining Medicaid benefits, and we refuse to ignore that guidance.” Baker and Kohler suggested in their motion for reconsideration that “In retrospect, perhaps the state did not clearly articulate its argument in the state’s appellate brief.” They continued that state law lists four different forms of Medicaid fraud. The one for which Kell was indicted makes it a crime when any person obtains Medicaid payments by “any fraudulent scheme or device.” They said this form of Medicaid fraud was analogous to the crimes of theft and conspiracy, for which venue is in any county where a part of the crime occurred. “It is the criminal, not the state, who chooses the county or counties in which the overt acts in furtherance of the fraudulent scheme are carried out,” they concluded. “As with theft and conspiracy cases, this Court should recognize that there is more than one potential venue for Medicaid fraud prosecutions under O.C.G.A. 49-4-146.1(b)(1)(c).” Kell’s lawyer, Leonard L. Franco, criticized the state’s argument as somewhat of a double standard. For example, he said, all challenges to state medical board decisions are brought in Bibb County, where the board is located. “The state chooses venue all the time,” said Franco, who has not given up the case’s other venue challenges. The appeals court rejected his argument that the tax evasion charges did not belong in Fulton because Kell lived in Cobb County. Ruffin wrote, “We cannot find, however, that the defendant’s county of residence necessarily determines venue in a tax evasion case.” Evidence showed that Kell received income checks at his Fulton County offices, Ruffin said, so “a rational fact-finder could conclude beyond a reasonable doubt that Kell willfully evaded taxes in Fulton County.” Franco has asked the panel to reconsider its rulings that affirmed Kell’s other convictions.

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