Appellant Tyrone Cecil Malloy, a Georgia gynecologist, was indicted along with his office manager on two counts of Medicaid fraud in violation of OCGA § 49-4-146.1 b 2.1 Specifically, appellant was charged with knowingly and wilfully accepting medical assistance payments to which he was not entitled and in amounts greater than he was entitled from the State of Georgia Medicaid program because the services charged for were either “associated with the performance of elective abortions,” or had not been performed. Prior to the indictment, the Program Integrity Unit of the Georgia Department of Community Health DCH2 had conducted a review of appellant’s clinic looking for violations of the “Hyde Amendment” which prohibits the use of federal funds to pay for elective abortions. Based on its findings, DCH referred appellant’s case to the State’s Medicaid Fraud Control Unit for a full investigation, while concurrently instituting a “withhold” on reimbursements to appellant’s Medicaid provider number.3
Appellant requested an administrative review of the withhold by DCH and, in response, received a letter informing him that based on its determination that appellant had billed abortion-related services to Medicaid the withhold would remain in effect. Appellant then requested and was granted an administrative hearing before an administrative law judge ALJ on the issue of the withhold. The ALJ subsequently issued an initial decision in favor of appellant reversing DCH’s decision to maintain the withhold. Although noting that the State’s interpretation of the services as abortion-related was reasonable, the ALJ determined that the record did not support a conclusion that appellant wilfully misrepresented a material fact and thus could not support a finding of fraud or wilful misrepresentation under the Medicaid program.4 As DCH neither filed a motion for reconsideration or rehearing with respect to the ALJ’s decision nor sought to reject or modify it pursuant to the provisions of OCGA § 50-13-41 e 1,5 the ALJ’s decision was affirmed by operation of law, and effectively became the decision of DCH. See Alexander v. Dep’t of Revenue, 316 Ga. App. 543 728 SE2d 320 2012. Thereafter, the “withhold” status was terminated and the withheld funds were released to appellant.
