PETITION FOR WRIT OF MANDAMUS

IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF OKLAHOMA

PETITION FOR WRIT OF MANDAMUS

Pursuant to Rule 10.6 et seq of the Oklahoma Court of Criminal Appeal Rules, Petitioners, pro se, request an order from this Honorable Court to compel the District Court of Oklahoma County to dismiss criminal charges of Medicaid Fraud and conspiracy to commit Medicaid for due process violations and lack of jurisdiction. In support of this petition, the Petitioners shall rely on this Petition, the enclosed Memorandum of Points and Authorities, and the Exhibits adduced thereof.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITIONERS’ WRIT FOR MANDAMUS

INTRODUCTION

The Petitioners invoke this Court’s jurisdiction pursuant to Rule 10.6 et seq of the Oklahoma Court of Criminal Appeal Rules. Petitioners seek a Writ of Mandamus against the District Court of Oklahoma County for violations of Petitioners’ due process rights and the said Court’s lack of jurisdiction. Notably, for the past five years, Petitioners have been subjected to a criminal trial in the District Court of Oklahoma County, where their rights have been violated as already stated and further averred in pertinent detail herein. Petitioners have suffered and continue to suffer irreparable harm and therefore request this Court to address their case in the interest of justice.

STATEMENT OF FACTS

Petitioner was the owner and operator of healthcare companies. During the end of 2012, the Oklahoma Health Care Authority (“OHCA”) began an investigation into Petitioner’s business (“XYZ Company”) unbeknown to the Petitioner. The said investigation was based on complaints from disgruntled employees involving misdeeds committed by those same employees. OHCA, instead of investigating the wrongdoers, began an investigation into Petitioners. These investigations did not follow due process guidelines in regard Medicaid fraud. Per 42 CFR 431.107, before any action is taken against Petitioners, Petitioners need to keep records and pursuant to 74 Oklahoma statute 8541, the OHCA and the Oklahoma State auditor and the inspector will have the right to examine the provider’s books.

On or about May 13, 2013, XYZ Company received a notice of the termination of its business’ contract with OHCA. In the notice, OHCA stated that the termination was based on an alleged finding of “Credible allegation of fraud”. According to the OHCA, several XYZ Company’s former employees allegedly testified that XYZ Company asked its former employees to sign and bill for treatments it did not provide, and that XYZ Company also threatened the employees with termination, if they did not follow its orders. Further, on or about June 10, 2013, Petitioner received a follow-up notice to the May 13th notice of termination sent to Petitioner. In the said notice, OHCA reiterated that it had suspended all Medicaid payments to XYZ Company’s business. Accordingly, Petitioner appealed the decision to the OHCA Review Panel. The post suspension review panel heard the matter on November 13, 2013 and issued a finding on November 25, 2013, that the said termination was valid and legal. Consequential to the termination, XYZ Company transitioned its clients to ABC Solutions, a company owned by XYZ Name. XYZ Company intended to have the children transferred to ABC Solutions temporarily as it worked on its credentials. It did this in the best interest of the children’s welfare. At this time, XYZ Company reasonably believed that all relevant protocols were being adhered to during the transition period. Besides, the children were all given new assignments and psycho-social evaluations. Accordingly, XYZ Company relied on XYZ Name. On or about the 20th day of June 2016, the State of Oklahoma, by and through unconstitutional actions of the staff of the Attorney General’s office, charged XYZ Company—who is also a former employee of XYZ Name—and its partner, XYZ Partner (“XYZ Partner”), to having conspired to commit several counts of Medicaid fraud. The said charge was brought by information from XYZ Name. The allegations mentioned above lacked evidence. On or about March 28, 2017, the State of Oklahoma, by and through illegal conduct of staff of the Attorney General’s office, moved to the District Court of Oklahoma County through Magistrate XYZ Official, to dismiss all counts against XYZ Name, who was the only medical provider on the date and time of the alleged offenses charged by the State. See Preliminary Hearing Transcript of XYZ Name & AAG Testimony Da v 1 Attached Exhibit “A”; Services, XYZ Therapeutic CDC, XYZ Intensive Youth Development Services and Exceptional Minds for years 2012-2015. The following are the specific factual allegations against staff of the Respondent and the OHCA.

Persona

XYZ Investigator worked for Oklahoma Health Care Authority (OHCA)—Position—Medicaid Fraud/Civil Rights Investigator. He started the investigation for XYZ Companies around April 2011 with XYZ Biller, which was a biller for XYZ Companies. He received a total of five complaints from XYZ Companies employees only: no Medicaid recipients. XYZ Investigator’s investigation was flawed because it failed to follow 455.13 on the requirement of conducting a preliminary investigation before writing up his referral. Besides, the referral was only written for XYZ Therapeutic CDC, which is only one location of four that XYZ Company owned. XYZ Investigator never included XYZ Investigator as an owner or provider of XYZ Companies. XYZ Investigator never received any referrals in his name to the MFCU. XYZ Partner did not date or marry XYZ Company before March 2012. XYZ Partner was only a helper at XYZ Companies and never was a provider. XYZ Partner attended the panel hearing only to support XYZ Company as a partner. XYZ Partner married XYZ Company June 28, 2013. Yet XYZ Partner has been established as an employee, owner, and provider of XYZ Companies and ABC Solutions with the MFCU and Attorney Generals filings in state court. April 2, 2013 with the legal division but was not sent over to the MFCU unit until June 10, 2013, which is after the XYZ Companies was terminated. XYZ Investigator’s referral was not only inconsistent with policies and procedures for 455.13 and 455.14, but it also failed to have complete information to determine the specifics of the Medicaid Fraud allegation which was the statute, rules, policies violated, date and date range of submitted claims and the approximate potential overpayment amount per allegation. XYZ Investigator did not complete a referral per XYZ Companies which were all separate entities according to law. They are XYZ Family and Youth Association; XYZ Behavioral Health Services; XYZ Therapeutic CDC; and XYZ Intensive Youth Development Services. These companies were listed in the body of the text of the referral but were not written as separate entities per allegation that he investigated upon. Each referral is a statute and process of its own per company. Accordingly, XYZ Investigator did not conduct a complete preliminary investigation 455.14, before referring to the MFCU unit, which violated XYZ Company’s constitutional rights to an audit review, administrative appeals process, suspension appeals process and right to face its accusers. XYZ Investigator did not also appear to the only hearing that XYZ Company was offered to attend, which was the Post-Termination Hearing. XYZ Investigator’s failed appearance gave XYZ Company no opportunity to cross examine him as the investigator nor cross examine any of the five employees that he so-called investigated for credible allegations of fraud. XYZ Investigator also failed to issue outcome of QA reports/any reports or communications during investigative process. XYZ Official signed off on a letter of termination two weeks before XYZ Company completed and passed its onsite visit and received two of its facility renewals. This process was continued after XYZ Investigator and XYZ Counsel stated they found credible allegations of fraud. A contract renewal is a procedure, so therefore XYZ Company began its application process with payment of $500 per both applications without any denials. The renewals demonstrated that XYZ Official did not follow due process because there was never any communication from Oklahoma Health Care Authority to XYZ Company that it was under any investigation and was approved its renewals from March into early May of 2013. XYZ Company has gone through previous renewals with OHCA twice before its termination. XYZ Company’s renewals shown approved and updated in its billing system after the onsite visit conducted Mid-April 2013.

Jeremiah Streck and Nicole Nantois

XYZ Counsel and XYZ Official worked for the Oklahoma Health Care Authority (OHCA)—Position—Deputy General Counsel. XYZ Counsel and XYZ Official never included XYZ Partner as an owner or provider of XYZ Companies. XYZ Partner never received any referrals in his name to the MFCU. XYZ Partner did not date or marry XYZ Company before March 2012. XYZ Partner was only a helper at XYZ Companies and never was a provider. XYZ Partner attended the panel hearing only to support XYZ Company as a partner. XYZ Partner married XYZ Company June 28, 2013. Yet XYZ Partner has been established as an employee, owner, and provider of XYZ Companies and ABC Solutions with the MFCU and Attorney Generals filings in state court. XYZ Counsel and XYZ Official failed to coordinate a preliminary investigation upon receiving the complaints from the five employees through XYZ Investigator before filing the referral with the MFCU. Not only did XYZ Counsel and XYZ Official violate XYZ Company’s procedural due process in not conducting 455.13 and 455.14 before referral, he signed off the referral that was sent over to the MFCU sixty days after the referral was stamped into the legal division April 2, 2013. XYZ Counsel and XYZ Official failed to complete 455.14—Preliminary Investigation, in establishing an audit to support the complaints and credible allegations of fraud. He also failed to follow code 455.17 in reporting any and all adverse actions of credible allegations of fraud to CMS. In contravening code 455.18, XYZ Counsel and XYZ Official failed to report any overpayments or claims related to credible allegation of fraud. XYZ Counsel and XYZ Official failed to follow code 455.23 to report any payment suspensions before, during or after the termination of XYZ Company contracts. Therefore, XYZ Counsel and XYZ Official failed to assure that federal regulations was adhered to from the beginning of the complaints to the panel termination hearing. 42 CFR—455.13, 455.14, 455.17, 455.19, 455.20, 455.23. XYZ Official stated in the panel hearing “that this is your due process” and failed to relay any administrative procedures throughout the panel hearing process. XYZ Official signed off on a letter of termination two weeks before XYZ Company completed and passed its onsite visit and received two of its facility renewals. This process was continued after XYZ Investigator and XYZ Counsel stated they found credible allegations of fraud. Contract renewals is a procedure, so therefore XYZ Company began its application process with payment of $500 per both applications without any denials. The renewals demonstrated that XYZ Official did not follow due process because there was never any communication from Oklahoma Health Care Authority to XYZ Company that it was under any investigation and was approved its renewals from March into early May of 2013. XYZ Company has gone through previous renewals with OHCA twice before its termination. XYZ Company’s renewals shown approved and updated in its billing system after the onsite visit conducted Mid-April 2013.

Joel Nico Gomez and Kevin Corbett

XYZ Director and XYZ Executive worked as CEO Directors for the Oklahoma Health Care Authority (OHCA). XYZ Director and XYZ Executive or their peers never included XYZ Partner as an owner or provider of XYZ Companies. XYZ Partner never received any referrals in his name to the MFCU. XYZ Partner did not date or marry XYZ Company before March 2012. XYZ Partner was only a helper at XYZ Companies and never was a provider. XYZ Partner attended the panel hearing only to support XYZ Company as a partner. XYZ Partner married XYZ Company June 28, 2013. Yet XYZ Partner has been established as an employee, owner, and provider of XYZ Companies and ABC Solutions with the MFCU and Attorney Generals filings in state court. XYZ Director and XYZ Executive failed to assure that their peers followed through with federal procedures in 42 CFR 455.13—Methods for identification, investigation and referral, 455.14—Preliminary Investigation, 455.17—Reporting Requirement, 455.18—Providers Statements or Claims Forms, 455.20—Beneficiary Verification Procedure 455.23—Suspension of Payments In cases of Fraud. Termination letter was sent under their guidance, direction, and authorization. XYZ Director and XYZ Executive failed to complete 455.14—Preliminary Investigation, in establishing an audit to support the complaints and credible allegations of fraud. XYZ Director and XYZ Executive failed to follow code 455.17 in reporting any and all adverse actions of credible allegations of fraud. XYZ Director and XYZ Executive failed to follow code 455.18 by not reporting any overpayments or claims related to credible allegation of fraud. XYZ Director failed to follow code 455.23 to report any payment suspensions before, during or after the termination of XYZ Company contracts. XYZ Director and peers failed to also report any and all necessary notices to not suspend with CMS, MFCU and secretary of state. XYZ Executive failed to respond to any request that was made pertaining to documentation of reports, investigations, onsite visits etc. made by XYZ Partner in 2019 and 2020.

Carrie Evans; Lisa Gifford; Wendy Larsen; Traylor Rains; and Melinda Thomasen (“the Parties”)

XYZ Deputy worked for the Oklahoma Health Care Authority (OHCA)—Position—Deputy Chief Executive Officer. XYZ Officer worked for Oklahoma Health Care Authority (OHCA)—Position—Chief Operating Officer. XYZ Director worked for Department of Mental Health and Substance Abuse Services as Director of Program Enhancement. XYZ Senior worked for Department of Mental Health and Substance Abuse Services as senior director/policy and provider regulation. XYZ Assistant worked for the Oklahoma Health Care Authority (OHCA)—Position—Assistant Director of Policy. The Parties were in attendance of the Post Termination Panel Hearing as members of the panel for XYZ Companies. The Parties failed to adhere to the federal code of regulations during the post-termination hearing by not following administrative procedures of due process. Their position with the OHCA allowed them to be familiar with and adhere to the policies and procedures of a provider before the termination of a contract and thereafter. The Parties utilized the 70-page findings report that included the referral of credible allegations of fraud presented on the behalf of the OHCA and the information on the letter of termination of XYZ contracts to help determine their final decision. The findings report included no audit report and an incomplete referral process that only presented one of XYZ’s companies. The letter of termination included that the only procedure hearing that XYZ Company was allowed was (OAC) code 317:2-12 (3), although the decision of the panel hearing letter had the statement that XYZ Company was entitled to an administrative review; there was not one given nor offered before the termination or after. There were no other appeals or administrative procedures ever offered after the panel hearing’s decision on November 25, 2013. The Parties were decision-makers on continuing to terminate XYZ Company’s contracts based solely on the five employees’ statements. As one of the five-panel hearing members, The Parties contested in signing on the panel termination letter that XYZ Company-Wrenn Sooner-Care contracts were properly terminated and the OHCA complied with the requirements of federal regulations. The Parties made their decisions without XYZ Company having a procedural due process which was presented in the panel hearing report. (42 CFR 455.13—Methods for identification, investigation and referral, 455.14—Preliminary Investigation, 455.17—Reporting Requirement, 455.18—Providers Statements or Claims Forms, 455.20—Beneficiary Verification Procedure 455.23—Suspension of Payments In cases of Fraud. Termination letter was sent under their guidance, direction, and authorization. The Parties never signed off on the panel hearing decision letter as XYZ Partner being an owner or provider of XYZ Companies. XYZ Partner never received any referrals in his name to the MFCU. XYZ Partner did not date or marry XYZ Company before March 2012. XYZ Partner was only a helper at XYZ Companies and never was a provider. XYZ Partner attended the panel hearing only to support XYZ Company as a partner. XYZ Partner married XYZ Company June 28, 2013. Yet XYZ Partner has been established as an employee, owner, and provider of XYZ Companies and ABC Solutions with the MFCU and Attorney Generals filings in state court.

Mykel Fry and Thomas Siems (“the Parties”)

XYZ Attorney worked as an attorney for the Medicaid Fraud Control Unit and Assistant Attorney General. XYZ Agent worked as an Agent for the Medicaid Fraud Control Unit. The Parties failed upon receiving referral on June 10, 2013. The Parties accepted a referral from XYZ Counsel (OHCA employee) with incomplete referral requirements that is according to 42 CFR 455.13—Methodology. The referral was also sent over to the MFCU with only one of XYZ Companies (XYZ Therapeutic CDC out of four of XYZ Company’s companies). XYZ Company owned four companies with four separate provider contracts. XYZ Attorney as the Director of the MFCU aided and embedded XYZ Agent to falsify that XYZ Partner was part of being an owner and provider of XYZ Companies and ABC Solutions; and that he was part of an audit conducted on XYZ Companies in the probable cause affidavit for filing of charges; thereafter she admitted in several motion hearings that there was not an audit conducted on XYZ Companies and the Wrenn’s issue with due process needs to be taken up in civil court. XYZ Agent’s investigation never demonstrated nor concluded that there were indicia of reliability (42 CFR 405.370) to support any credible allegations of fraud. XYZ Agent continued with an investigation of XYZ Company without procedural due process from the Oklahoma Health Care Authority upon receiving the complaint and or referrals from XYZ Investigator and XYZ Counsel. XYZ Agent falsified a statement in the probable cause affidavit that there was an audit conducted on XYZ Companies, and there was fraud found in the audit. In several motion hearings that took place in 2019, the state admitted that there was not an audit conducted on XYZ Companies. The Parties failed to complete a full investigation 42 CFR 455.15 upon receiving the referral from XYZ Counsel after June 10, 2013. XYZ Attorney was not able to complete a full investigation and never supplied one by request from a motion for discovery based on several causes. 1) The MFCU must receive a preliminary investigation of due process from state agency to warrant a full investigation according 42 CFR 455.14. XYZ Attorney as demonstrated in the motion hearing reports, continues to deny identifying any overpayment claims of the credible allegations of fraud of filed charges of XYZ Company, XYZ Companies or ABC Solutions. The Parties failed to complete resolution of full investigation 42 CFR 455.16. XYZ Attorney never presented any overpayments or recovery of payments to XYZ Company or XYZ Companies or ABC Solutions overpayments prior to filing of charges June 20, 2016. The case was never closed or was dropped due to insufficient evidence to support the allegations of fraud. The Parties failed to report all adverse actions as required to the Office of Inspector General according to procedure 42 CRF 455.17—Reporting requirements. According to state responses to motion to compel hearing; there was never any reporting conducted by the state to the CMS or OIG. The Parties failed to suspend coordinate suspension of payments with the state agency (Oklahoma Health Care Authority) when receiving complaints and/or referrals for XYZ Companies and ABC Solutions. The Parties failed to suspend and coordinate suspension of payment with the state agency (Oklahoma Health Care Authority) and ABC Solutions when or if billing became questionable upon receiving complaints from OHCA. OHCA has never had any mentioning in XYZ Companies termination letter, panel hearing, XYZ Name (provider of ABC Solutions) nor any state witnesses at the preliminary hearing that false claims were billed under XYZ Companies provider numbers nor ABC Solutions Provider numbers. Yet the state mentions in the probable cause of affidavit, preliminary hearing and their motion responses in state court that claims submitted before and after XYZ’s termination was fraudulent and falsely labeled as ABC Solutions claims. XYZ Company has yet to receive any overpayment of claims from the Oklahoma Health Care Authority or MFCU to support allegations of Fraud. XYZ Company has only received payment amounts from the Attorney Generals Probable Cause Affidavit and never presented in any previous discovery material or requests from XYZ Partner in state courts. The Parties are aware of procedural due process with Oklahoma Health Care Authority based on ABC Solutions receiving an audit June 2013, and XYZ Name following up with recovery of payments after audit was conducted. These claims were presented within the audit findings report and recovered payments paid directly to the OHCA legal division. The MFCU has never responded to any of the Wrenn’s request for the mentioning of recovery of payments that was paid by XYZ Name (provider of ABC Solutions) that was directed on the deferred prosecution agreement. When the Wrenn’s expressed a verbal and written complaint regarding failure of procedural due process conducted on behalf of the Oklahoma Health Care Authority and the MFCU. The Parties ignored the complaint and did not take any further action afterwards.

Scott Pruitt and Mike Hunter (“the Parties”)

XYZ Attorney General 1 worked as Attorney General for the state of Oklahoma from January 11, 2011—February 17, 2017. XYZ Attorney General 2 works as entered in office as Attorney General of Oklahoma beginning February 20, 2017. As Attorney Generals the Parties supported false information that themselves and their peers represented in state court while continuing a state case with failure of due process. The Parties’ office failed to enforce the laws that were mandated by the legislative body and the House of Representatives. The Parties’ office failed to defend plaintiff when they saw that their constitutional rights violated with Oklahoma Health Care Authority. The AGs did not comply to federal laws and regulations relative the operations of a Medicaid Fraud Unit. The AG proceeded to represent the MFCU and OHCA with Plaintiffs violations of due process. XYZ Company previous XYZ Company was never given due process prior to filing of charges. And continued to establish in court that XYZ Company’s preliminary hearing was its due process as stated in the motions. The Parties failed to abide by the Medicaid Fraud False Claims Act by not substantiated any victim of fraud and claims that was related to Oklahoma Health Care Authority and MFCU allegations of fraud. XYZ Attorney General 1’s office continued to investigate Plaintiff with Medicaid Fraud as a provider after the termination of its contracts as a provider May 16, 2013. The Parties’ assistant XYZ Assistant demonstrated in emails that she was unlawfully investigating XYZ Company facilities after the issue was resolved with DHS called in a complaint. XYZ Company resolved this matter with its Attorney of the misunderstanding with its previous held Daycare license that was terminated prior to its beginning its day treatment services. XYZ Assistant emails that were demonstrated in discovery demonstrates harassment and intimidation by contacting XYZ Contact with Oklahoma Health Care Authority to look at billing patterns after Department of Human Services called in a complaint of confusion about the services XYZ Company was offering. XYZ Contact now works for the AG office and has become one of their state witnesses. XYZ Assistant works as the Assistant Attorney General in the state of Oklahoma. XYZ Assistant has established untrue statements of XYZ Partner as a defendant that has had his contracts with OHCA terminated as well as rendered services as provider. As Assistant Attorney General to XYZ Attorney General 2. XYZ Assistant continue to represent false information upon XYZ Partner in state court with failure of due process. XYZ Assistant failed to enforce the laws that were mandated by the legislative body and the House of Representatives. XYZ Assistant failed to defend plaintiff when they saw that their constitutional rights violated with Oklahoma Health Care Authority. The AGs did not comply to federal laws and regulations relative the operations of a Medicaid Fraud Unit. The AG proceeded to represent the MFCU and OHCA with Plaintiffs violations of due process. XYZ Company previous XYZ Company was never given due process prior to filing of charges. And continued to establish in court that XYZ Company’s preliminary hearing was its due process as stated in the motions. XYZ Assistant failed to abide by the Medicaid Fraud False Claims Act by not substantiated any victim of fraud and claims that was related to Oklahoma Health Care Authority and MFCU allegations of fraud. XYZ Attorney General 1’s office continued to investigate Plaintiff with Medicaid Fraud as a provider after the termination of its contracts as a provider May 16, 2013. XYZ Assistant demonstrated in emails that she was unlawfully investigating XYZ Company facilities after the issue was resolved with DHS called in a complaint. XYZ Company resolved this matter with its Attorney of the misunderstanding with its previous held Daycare license that was terminated prior to its beginning its day treatment services. XYZ Assistant emails that were demonstrated in discovery demonstrates harassment and intimidation by contacting XYZ Contact with Oklahoma Health Care Authority to look at billing patterns after Department of Human Services called in a complaint of confusion about the services XYZ Company was offering. XYZ Contact now works for the AG office and has become one of their state witnesses. XYZ Assistant failed to protect our civil rights when she saw there was no audit, preliminary investigation given from the state agency (Oklahoma Health Care Authority).

ARGUMENTS

THE STATE OF OKLAHOMA VIOLATED APPLICABLE LAW; THEY WERE TO GIVE AN AUDIT, AND TO FOLLOW ADMINISTRATIVE PROCEDURES AND DUE PROCESSES.

Under Federal law, the Medicaid Agency is bound by strict procedural requirements for the investigation of Medicaid claims. Notably, 42 CFR § 455.13 provides that: The Medicaid agency must have – (a) Methods and criteria for identifying suspected fraud cases; (b) Methods for investigating these cases that – (1) Do not infringe on the legal rights of persons involved; and (2) Afford due process of law; and (c) Procedures, developed in cooperation with State legal authorities, for referring suspected fraud cases to law enforcement officials. (Emphasis added). Further, 42 CFR § 455.14 provides that “[if] the agency receives a complaint of Medicaid fraud or abuse from any source or identifies any questionable practices, it must conduct a preliminary investigation to determine whether there is sufficient basis to warrant a full investigation.” The preliminary investigation is to be followed up by a full investigation thereof. See 42 CFR § 455.15. OKLA. STAT. §§ 63-5053—63-5053.7 is the regime of law in Oklahoma that deals with Medicaid fraud in Oklahoma. Accordingly, § 63-5053.2(A) provides the requirement for the investigation of a claim by the Attorney General. The said provision states: “[t]he Attorney General shall diligently investigate a violation under the Oklahoma Medicaid False Claims Act.” (Emphasis added). According to the Agency Chart for investigating allegations of fraud, the Medicaid agency must first conduct a preliminary investigation first when it receives an allegation. In the event the agency determines the allegation is credible, it may either suspend payments and refer the case to the MFCU, or apply a good cause exception to the allegation. The MFCU then takes up investigation against the entity whom the allegation was made. In the instant case, the Oklahoma Health Care Authority did not give a preliminary investigation for all four of XYZ Companies nor ABC Solutions. A complete preliminary investigation is required before a full investigation is warranted. MFCU did not receive any preliminary investigation nor an audit before conducting a full investigation. See preliminary hearing transcript Day 1 & 2. The Respondents also broke the law by not following the Oklahoma False Claims Act. Notably, they did not receive any false records from the Oklahoma Health Care Authority from an Audit for any alleged false claims from XYZ Companies nor ABC Solutions. See attachment of Oklahoma False Claims Statutes, page 3-4. It follows; Oklahoma Health Care Authority never presented nor gave any adverse actions to XYZ Company-Wrenn, XYZ Partner, nor XYZ Name for ABC Solutions for owing any overpayment false claims. Until the time of drafting this Petition; neither OHCA, MFCU nor Attorney General have presented any false claims that was governed by any state or federal laws nor governmental agencies such as CMS, United States Department of Health and Human Services/Office of Inspector General or FBI alleging that XYZ Company-Wrenn and XYZ Partner owes for any alleged false claims. Although the probable cause affidavit for arrest states the investigator and the AAG believed there were claims owed; they have never presented any evidence that has been requested in XYZ Company and XYZ Partner’s Motion for Discovery and Motion to Compel. See Second Motion for Discovery and Motion to Compel. The Oklahoma Health Care Authority, operating as the Program Integrity Unit (PIU) under federal guidelines should produce a manual to give to providers, which manual the policies and procedures of administrative due process See OHCA manual chapter 17 and 18. Unfortunately, OHCA failed to follow the guidelines therein, in violation of Petitioners’ due process rights. The Attorney General used XYZ Witness, one of Oklahoma Health Care Authorities personnel, as a state witness to validate communicating any false claims to CMS and overturn any that were warranted false. See preliminary hearing transcript, Day 3. XYZ Witness concluded that on the day she testified, no claims were turned over for ABC Solutions. They did not even question her about any of XYZ Companies claims. XYZ Company-Wrenn and XYZ Partner has spoken to XYZ CMS Director, Director of CMS for Regional Office 6, who stated that as of July 2019, there was no claims overturned or adverse actions for XYZ Company-Wrenn, XYZ Companies nor ABC Solutions. According to NPPD—there were no adverse actions reported on any XYZ Companies NPI numbers. See NPPD letter. The Medicaid Fraud Control Unit did not receive legitimate and a complete referral from the Oklahoma Health Care Authority in order to conduct a full investigation. The referral that was received from XYZ Investigator signed off by XYZ Counsel, was only sent on one of four of XYZ Companies and was not filled out according to 42 CFR 455.21. See referral that was sent on the behalf of OHCA. The OHCA termination letter that was sent to XYZ Company (Wrenn/XYZ Companies) did not follow procedural due process. Notably, it did not include the following; they lacked an administrative code for the provider to appeal. The Provider could therefore not appeal anyhow because the only way to appeal for administrative review is to have an audit. Second, there was no suspension of payments received, which is another appeal that a provider is due. In fact, XYZ Companies received three weeks of payments after the termination of contracts. See bank statement. XYZ Company-Wrenn could not appeal any claims because there wasn’t any overpayment of any false claims presented upon XYZ termination of contract; although OHCA alleged there were false claims that XYZ Companies billed on. See termination letter and Outcome letter of panel hearing. They never did this procedure for the alleged false claims owning for ABC Solutions as well. Once XYZ Company-Wrenn and XYZ Partner attended the only appeal offered, which was a post panel review hearing; it was rejected by OHCA panel members. Their decision was solely based on the five disgruntled employees hearsay; not procedural due process.

THE OHCA, MFCU AND AAG VIOLATED THE PETITIONERS’ DUE PROCESS RIGHTS UNDER THE 14TH AMENDMENT.

The Fourteenth Amendment to the United States Constitution and Article II, § 7 of the Oklahoma Constitution prohibit the State from depriving a person of life, liberty, or property without Due Process of law. The Due Process Clause protects against practices and policies that violate precepts of fundamental fairness even if they do not violate specific guarantees of the Bill of Rights. See In re Winship, 397 U.S. 358 (1970). The pertinent question to challenge the conduct of the case is whether the challenged practice or policy violates “a fundamental principle of liberty and justice which inheres in the very idea of a free government and is the inalienable right of a citizen of such government.” See Rochin v. California, 342 U.S. 165, 169 (1952) (on whether the conduct “offend[s] those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.”); Palko v. Connecticut, 302 U.S. 319, 325 (1937) (on whether it partakes “of the very essence of a scheme of ordered liberty”); Twining v. New Jersey, 211 U.S. 78, 106 (1908) (on whether a claimed right is “implicit in the concept of ordered liberty.”). Fundamental fairness is that which is essential to the very concept of justice. Lisenbay v. California, 314 U.S. 219, 236, 62 S. Ct. 280, 289, 86 L.Ed. 166 (1941). Therefore, in identifying fundamental fairness, due regard must be given to the rights secured by the Constitution. Mann v. State, 1993 OK CR 32., 856 P.2d 992. In the instant case, there were no audits done. The Attorney General’s office is granted all the powers necessary to comply with laws and regulations, yet there has been no evidentiary production of any regulatory audits related to the charged Medicaid Fraud offenses. OHCA failed to follow the aforementioned procedure by failing to conduct a preliminary investigation. They never questioned or even contacted Petitioners, never performed an audit on the business between the receipt of complaints and the termination of XYZ Company’s OHCA contracts, and never conducted an inspection of the premises for purposes of investigating the claims. Besides, XYZ Agent provided false information that he conducted a preliminary investigation of fraud in the XYZ Companies. See preliminary hearing transcript, Day 1. Notably, XYZ Agent’s mere mentioning of an audit in his affidavit should demonstrate to this court that an audit is an essential element of due process and that taking any action against Petitioners without an audit violated procedure due process, which violation deprived Petitioners of their constitutional protection under the fourteenth amendment of the United States Constitution. The sworn affidavits for arrest warrants authored by XYZ Agent officer painted a false picture for the court—that during his investigation XYZ Agent found that OHCA conducted an audit of XYZ Companies (XYZ Company’s Business). XYZ Witness testified that she does not remember doing an audit for XYZ Companies, after being told by her superior that XYZ Companies was closed. See preliminary hearing transcript Pg. 105. Line 11-25. It follows; the staff of OHCA failed to follow procedure, and by its failure to do so, violated Petitioners’ due process rights, which are guaranteed under the Constitution.

THE STATE ENGAGED IN PROSECUTORIAL MISCONDUCT.

According to the Oklahoma Code of Professional Responsibility, Disciplinary Rule 7-106(C), 5 O.S. 1971, Ch. 1, App. 3, “[i]n appearing in his professional capacity before a tribunal, a lawyer shall not engage in undignified or discourteous conduct which is disregarding to the tribunal; and intentionally violate any established rule of procedure or of evidence. Rule 3.3(a)(3) of the Oklahoma Rules of Professional Conduct states that a lawyer shall not knowingly offer evidence that the lawyer knows to be false. Prosecutorial misconduct that deprives the Defendant of a fair trial is so grave that it warrants the reversal of a conviction. See Powell v. State, 2000 OK CR 5, 151, 995 P.2d 510, 539; Martinez v. State, 1999 OK CR 33, 48, 984 P.2d 81, 826. According to Title 22 OK Stat § 22-305.1 (2014), prosecution may be deferred for three years strictly before information is entered against the accused. The said provision states: “before the filing of an information against a person accused of committing a crime, the State of Oklahoma, through its district attorney, may agree with an accused to defer the filing of a criminal information for a period not to exceed three (3) years.” (Emphasis added). XYZ Name having had an information filed against her in this captioned cause, was not statutorily eligible for a deferred prosecution. Besides, within the illegal deferred prosecution agreement between XYZ Name and the Attorney General, the Attorney General’s office awarded itself $154,600.75 from XYZ Name, of Medicaid monies in restitution. Petitioners further contend that since the inception of the Attorney General’s illegal deferred prosecution agreement with XYZ Name, the State, by having ordered such an award to themselves, has created a pecuniary interest that leaves no other alternative but to continue their advancement for a Medicaid Fraud conviction against Plaintiff, as justification for their pecuniary enrichment. See Deferred Prosecution Agreement; see also Preliminary hearing Day 1—XYZ Name’s testimony; Joint Motion to Dismiss. The state never placed in a supplemental court order for XYZ Name’s restitution, while XYZ Name never pleading guilty to any crimes. Accordingly, the state used her as a star witness in the preliminary hearing and for future trials to make it appear that the Wrenns were guilty when in reality, she was the only provider and supervisor over the claims. A state witness XYZ Witness states that as of 2018 none of those claims have been voided or returned. When XYZ Name testified, she had already paid the restitution that was proposed to her but yet these claims have not been paid into. See Preliminary Hearing Day 3 XYZ Witness, pages 8-15. The state asked for co-defendant to pay restitution of $155,000 and did not place in a supplemental court order for restitution, which was confirmed by the Oklahoma County Court Clerk and the District Attorney’s office. See deferred prosecution agreement and affidavit, and Preliminary Hearing Day 1—XYZ Name.

MULTIPLE JUDGES DENIED PETITIONERS THE RIGHT TO MOUNT A DEFENSE AND CREATED A BRADY VIOLATION. THIS AMOUNTED TO A DENIAL OF FAIR TRIAL.

In Strickler v. Greene, the U.S. Supreme Court summarized the “essential components of a Brady violation” (527 US 263, 280) as follows: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued” (id. at 281-282). Brady held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution” (373 US at 87). “The accused has the burden of establishing each of these three components to prevail on a Brady claim,” Commonwealth v. Tuma, 285 Va. 629, 635, 740 S.E.2d 14, 17 (2013) (emphasis added) (citing Skinner v. Switzer, 131 S. Ct. 1289, 1300 (2011)). “When a party is prevented from having a fair trial as a result of an error which materially affects the substantial rights of the party [is] a new trial . . . required,” Taliaferro v. Shahsavari, 2006 OK 96, ¶ 13, 154 P.3d 1240, 1244 (footnote omitted). See also 12 O.S.2011 § 2104(A). “Reversible error has been held to be an error that creates a probability of change in the outcome of the lawsuit.” Taliaferro, ¶ 13, 154 P.3d at 1244 (footnote omitted). “It is the duty of the trial court to safeguard the rights of the litigants to a fair trial and where, in the opinion of the court, a party has not been so protected, may grant a new trial to obviate the error which has occurred.” Id. AAG XYZ Assistant and XYZ Attorney’s concealment of XYZ Name’s deferred prosecution agreement directly prejudiced Defendants. Had the Court been apprised that the State’s star witness was giving an illegal deferred prosecution agreement, the Court would not have allowed the information against Defendants to be filed, as no probable cause existed against Defendants. Therefore, there is no doubt that AAG XYZ Assistant and XYZ Attorney has concealed exculpatory evidence of the restitution payments received from XYZ Name and the victims of the progress note claims of payments from ABC Solutions that is in regulation to do so in her blind pursuit of Defendants, despite her lack of probable cause.

Judge[Name]

The Petitioners’ attorney, the state, and Judge XYZ Judge discussed Petitioners’ Motion in Limine to Exclude Spreadsheets and other Non-Authenticated documents related to alleged false claims that were filed on April 30th, 2021. However, Judge XYZ Judge concluded to allow spreadsheets instead of actual claim documents to show proof of fraud. The said Judge disregarded the Petitioners’ attorney’s expression of the need for the Petitioners to include the actual claims that present exculpatory evidence that the Petitioners were not being the provider as well as the services rendered by ABC Solutions Agency. Notably, the provider and owner of ABC Solutions had already testified that these claims were her company’s claims and that she caused the claims to be billed under her electronic billing system. See Preliminary Hearing pgs. 186-223.

Judge[Name]

On the 22nd day of March 2019, Judge XYZ Judge told the Petitioners that their only remedy for prosecutorial misconduct is resolution through a complaint with the Oklahoma Bar Association. It follows; Judge XYZ Judge did not enforce the court’s jurisdiction on the ground that the Respondents had violated OKLA. STAT. §§ 63-5053—63-5053.7; 42 CFR 455.13—Methods for identification, investigation, and referral, and 42 CFR 455.14—Preliminary Investigation. If Judge XYZ Judge would not have avoided applying its jurisdiction, the AAG would not have been able to withhold exculpatory evidence and continue the actions of prosecutorial misconduct. Judge XYZ Judge did not address any of the Petitioners’ motions that demonstrated that the AAG and the Oklahoma Health Care Authority violated both Petitioners’ due process of not addressing Petitioners’ Motions to Quash, Supplemental Motions and the Motion to Compel, and continued to allow the AAG to convince the courts that Petitioners are not allowed due process that the United States and Oklahoma Constitution guarantee. Although Judge XYZ Judge had previously addressed the to the prosecutors during the Motion for Discovery for the prosecutors to turn in all exculpatory evidence, Judge XYZ Judge continued to allow the prosecutors to withhold exculpatory evidence during the second motions hearing. Judge XYZ Judge also allowed the AAG to deceive the courts by saying the Oklahoma Health Care Authority is a separate entity, and that the audit which demonstrates a preliminary investigation was not relevant to the case, so therefore, the audit(s) was never given to either Petitioner.

Judge [Name]

Judge XYZ Official allowed the prosecutors to withhold evidence from both the AAG and attorney XYZ Attorney 1 and XYZ Attorney 2 during the time of their preliminary hearing. If this information was properly placed on notice, then both Petitioners would have been aware of the deferred prosecution at that time. Yet this information was never placed into courts record and Judge XYZ Official did not object to this matter on March 28, 2017. Also, Judge XYZ Official failed to request the production of documentation from the prosecutors to demonstrate that XYZ Name was eligible for a deferred prosecution and granted the dismissal without conducting proper duties of due diligence as a judge. The Judge(s) also allowed jury trial dates being continued for six months at a time, which prejudiced Petitioners. The current Judge continues to ignore Petitioners’ Motion to Compel that has been filed on a particular witness that’s withholding evidence and prosecutors that’s withholding exculpatory evidence. For example; the Petitioners requested them to place in the false claims under the false claims act for all charges; place in any audits and preliminary reviews by Oklahoma Health Care Authority, CMS or OIG that presents any overpayments of false claims that XYZ Company-Wrenn and XYZ Partner owes; to also give the claims and proof of payments that have been paid from XYZ Name $155,000 restitution that’s part of the claims that they want the Petitioners to pay. Any restitution that has been collected from Medicaid Claims should be repaid back to Title 19 funds. The Petitioners have yet to receive those proof of payments as well. It follows; the Judge continues to disregard the Petitioners’ subpoena duces tecum and Motions to Compel and states that they can give the items to the Petitioners upon trial date.

THE STATE OF OKLAHOMA FAILED TO SATISFY PETITIONER’S GUILT BEYOND REASONABLE DOUBT

In the hierarchy of standards of proof, the highest burden is proof “beyond a reasonable doubt.” Each element of a criminal offense must be proven beyond a reasonable doubt before a person can be convicted of a crime. Ledbetter v. State, 933 P.2d 880, 897 (Okla.Crim.App. 1997).”Clear and convincing” evidence, defined as “that which supports a conclusion free from serious or substantial doubt of correctness,” is an intermediate standard. Scribner v. Hillcrest Medical Center, 866 P.2d 437, 441 n. 10 (Okla. 1992). In the instant action, the Prosecution relied on weak evidence to prove Petitioners’ guilt. It is worth noting that ABC Solutions approved all individual providers contract in order for them to bill claims under ABC Solutions company provider number. Notably, XYZ Companies contract was terminated May 16, 2013. XYZ Companies did not operate nor control ABC Solutions management and billing operations. See preliminary hearing transcript Pg. 74. Line 17-25. XYZ Name gave contradictory testimony. See preliminary hearing pg. 194 line 4-7. She admitted that both cockpits were arranged under her provider number. See preliminary hearing pg. 194. Line 8-11. XYZ Name also admitted that she brought XYZ Companies under her Milan system. See preliminary hearing Pg. 208. She stated that XYZ Companies did not have their own provider number, so all the claims became ABC Solutions claims, and that that XYZ Companies didn’t provide any services, she just did supervision. See preliminary hearing Pg. 209. Line 8-12. Also, XYZ Agent admits to not investigating XYZ Employee’s signatures and copies of the progress notes. See preliminary hearing pg. 102. XYZ Agent also admits to not verifying when XYZ Employee left XYZ Companies employment, which is crucial evidence of Petitioners’ innocence. See preliminary hearing pg. 103. He admits to having XYZ Employee’s personnel file, but wasn’t disclosing what he had witnessed in the file, and that he did not know where the progress notes were. See preliminary hearing pg. 104. Interestingly, XYZ Agent admitted that XYZ Companies was given a short notice before closing, and that no audit was conducted. See preliminary hearing pg. 95-96. Further, he stated that he had no communication with OHCA See preliminary hearing pg. 97. The said evidence represents just a few of the instances where the Prosecution failed to satisfy the beyond reasonable doubt standard required in criminal actions.

PRAYER

The Petitioners ask this Court to issue a writ of mandamus directing the District Court of Oklahoma County to dismiss criminal charges of Medicaid Fraud and conspiracy to commit Medicaid made against the Petitioners. Petitioners also pray this Court dismisses the temporary restraining order entered on March 30, 2020. Petitioners also pray for such other and further relief as is just.

Dated: ________________

Respectfully submitted,

CERTIFICATE OF SERVICE

I hereby certify that on _____________, I sent the foregoing to the Parties herein to their respective addresses.

Dated: _____________

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