PETITION FOR WRIT OF MANDAMUS

IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF OKLAHOMA

Persona ,

                                    PETITIONERS,

-vs-

Case No: _____________

(CASE NO 🙂

 

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 Petitione’s business (“Janice”) 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 to74 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, Janice’s received a notice of the termination of her 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 Janice’s former employees allegedly testified that Janice asked her former employees to sign and bill for treatments she did not provide, and that Janice also threatened the employees with termination, if they did not follow her 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 Janice’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, Janice transitioned her clients to Options Unlimited, a company owned by Kimberly Shoals. Janice intended to have the children transferred to Options Unlimited temporarily as she worked on her credentials. She did this in the best interest of the children’s welfare. At this time, Janice 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, Janice relied on Kimberly Shoals. 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 Janice- who is also a former employee of Ms. Shoal-, and her husband, Derrick Wrenn (“Derrick”), to having conspired to commit several counts of Medicaid fraud. The said charge was brought by information from Kimberly Shoals.

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 Larry Shaw, to dismiss all counts against Ms. Shoals, who was the only medical provider on the date and time of the alleged offenses charged by the State. See Preliminary Hearing Transcript of Kimberly Shoals & AAG Testimony Da v 1 Attached Exhibit “A”; Services, Briggs Therapeutic CDC, Briggs 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 OHA. 

  • Persona

Persona worked for Oklahoma Health Care Authority (OHCA)-Position-Medicaid Fraud/Civil Rights Investigator. He started the investigation for Briggs around April 2011 with Constance Lindley, which was a biller for Briggs companies. He received a total of five complaints from Briggs employees only: no Medicaid recipients. Mr. Persona 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 Briggs Therapeutic CDC, which is only one location of four that Janice Wrenn owned. 

Mr. Persona never included Persona as an owner or provider of Briggs Companies. Persona never received any referrals in his name to the MFCU. Darrick Wrenn did not date or marry Ms. Briggs before March 2012. Darrick Wrenn was only a helper as Briggs Companies and never was a provider. Mr. Wrenn attended the panel hearing only to support Ms. Briggs as a husband. Darrick Wrenn married Janice Wrenn June 28, 2013. Yet Mr. Wrenn has been established as an employee, owner, and provider of Briggs Companies and Options Unlimited 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 Briggs companies was terminated. Mr. Kirkpatrick’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 statue, rules, policies violated, date and date range of submitted claims and the approximate potential overpayment amount per allegation. 

Mr. Kirkpatrick did not complete a referral per Briggs companies which were all separate entities according to law. They are Briggs Family and Youth Association; Briggs Behavioral Health Services; Briggs Therapeutic CDC; and Briggs 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 statue and process of its own per company. 

Accordingly, Mr. Kirkpatrick did not conduct a complete preliminary investigation 455.14, before referring to the MFCU unit, which violated Janice’s constitutional rights to an audit review, administrative appeals process, suspension appeals process and right to face her accusers. 

Mr. Kirkpatrick did not also appear to the only hearing that Janice was offered to attend, which was the Post-Termination Hearing. Mr. Kirkpatrick failed appearance gave Janice 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. 

Mr. Kirkpatrick also failed to issue outcome of QA reports/any reports or communications during investigative process. 

Ms. Nantois signed off on a letter of termination two weeks before Janice completed and passed her onsite visit and received two of her facility renewals. This process was continued after Travis Kirkpatrick and Jeremiah Streck stated they found credible allegations of fraud. A contract renewal is a procedure, so therefore Janice began her application process with payment of $500 per both applications without any denials. The renewals demonstrated that Ms. Nantois did not follow due process because there was never any communication from Oklahoma Health Care Authority to Ms. Briggs that she was under any investigation and was approved her renewals from March into early May of 2013. Ms. Briggs has gone through previous renewals with OHCA twice before her termination. Ms. Briggs renewals shown approved and updated in her billing system after the onsite visit conducted Mid-April 2013

  •   Jeremiah Streck and Nicole Nantois

Jeremiah Streck and Nicole Nantois worked for the Oklahoma Health Care Authority (OHCA)-Position-Deputy General Counsel. 

Jeremiah Streck and Nicole Nantois never included Darrick Wrenn as an owner or provider of Briggs Companies. Darrick Wrenn never received any referrals in his name to the MFCU. Darrick Wrenn did not date or marry Ms. Briggs before March 2012. Darrick Wrenn was only a helper as Briggs Companies and never was a provider. Mr. Wrenn attended the panel hearing in only to support Ms. Briggs as a husband. Darrick Wrenn married Janice Wrenn June 28, 2013. Yet Mr. Wrenn has been established as an employee, owner, and provider of Briggs Companies and Options Unlimited with the MFCU and Attorney Generals filings in state court. 

Jeremiah Streck and Nicole Nantois failed to coordinate a preliminary investigation upon receiving the complaints from the five employees through Travis Kirkpatrick before filing the referral with the MFCU. Not only did Jeremiah Streck and Nicole Nantois violate Janice’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. 

Jeremiah Streck and Nicole Nantois 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, Jeremiah Streck and Nicole Nantois failed to report any overpayments or claims related to credible allegation of fraud. 

Jeremiah Streck and Nicole Nantois failed to follow code 455.23 to report any payment suspensions before, during or after the termination of Briggs company contracts. Therefore, Jeremiah Streck and Nicole Nantois 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.

Ms. Nantois stated in in the panel hearing “that this is your due process” and failed to relay any administrative procedures throughout the panel hearing process.

Ms. Nantois signed off on a letter of termination two weeks before Janice Briggs completed and passed her onsite visit and received two of her facility renewals. This process was continued after Travis Kirkpatrick and Jermiah Streck stated they found credible allegations of fraud. Contract renewals is a procedure, so therefore Ms. Briggs began her application process with payment of $500 per both applications without any denial’s. The renewals demonstrated that Ms. Nantois did not follow due process because there was never any communication from Oklahoma Health Care Authority to Ms. Briggs that she was under any investigation and was approved her renewals from March into early May of 2013. Ms. Briggs has gone through previous renewals with OHCA twice before her termination. Ms. Briggs renewals shown approved and updated in her billing system after the onsite visit conducted Mid-April 2013.

  • Joel Nico Gomez and Kevin Corbett

Joel Nico Gomez and Kevin Corbett worked as CEO Directors for the Oklahoma Health Care Authority (OHCA).

Joel Nico Gomez and Kevin Corbett or their peers never included Darrick Wrenn as an owner or provider of Briggs Companies. Darrick Wrenn never received any referrals in his name to the MFCU. Darrick Wrenn did not date or marry Ms. Briggs before March 2012. Darrick Wrenn was only a helper as Briggs Companies and never was a provider. Mr. Wrenn attended the panel hearing in only to support Ms. Briggs as a husband. Darrick Wrenn married Janice Wrenn June 28, 2013. Yet Mr. Wrenn has been established as an employee, owner, and provider of Briggs Companies and Options Unlimited with the MFCU and Attorney Generals filings in state court. 

Joel Nico Gomez and Kevin Corbett failed to assure that his 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 his guidance, direction, and authorization. 

Joel Nico Gomez and Kevin Corbett failed to complete 455.14-Preliminary Investigation, in establishing an audit to support the complaints and credible allegations of fraud. 

Joel Nico Gomez and Kevin Corbett failed to follow code 455.17 in reporting any and all adverse actions of credible allegations of fraud. 

Joel Nico Gomez and Kevin Corbett failed to follow code 455.18 by not reporting any overpayments or claims related to credible allegation of fraud. 

Mr. Gomez failed to follow code 455.23 to report any payment suspensions before, during or after the termination of Briggs company contracts. Mr. Gomez and peers failed to also report any and all necessary notices to not suspend with CMS, MFCU and secretary of state.

Mr. Corbett failed to respond to any request that was made pertaining to documentation of reports, investigations, onsite visits etc. made by Mrs. Wrenn in 2019 and 2020.  

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

Carrie Evans works for the Oklahoma Health Care Authority (OHCA)-Position-Deputy Chief Executive Officer. Lisa Gifford worked for Oklahoma Health Care Authority (OHCA)-Position-Chief Operating Officer. Wendy Larsen worked for Department of Mental Health and Substance Abuse Services as Director of Program Enhancement. Traylor Rains works for Department of Mental Health and Substance Abuse Services as senior director/policy and provider regulation. Melinda Thomasen works 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 Briggs 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 Briggs contracts to help determine her final decision. The findings report included no audit report and an incomplete referral process that only presented one of Briggs’s companies. The letter of termination included that the only procedure hearing that Ms. Briggs was allowed was (OAC) code 317:2-12 (3), although the decision of the panel hearing letter had the statement that Ms. Briggs 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 Ms. Briggs’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 Ms. Briggs-Wrenn Sooner-Care contracts were properly terminated and the OHCA complied with the requirements of federal regulations. The Parties made their decisions without Ms. Briggs 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 his guidance, direction, and authorization.

The Parties never signed off on the panel hearing decision letter as Darrick Wrenn being an owner or provider of Briggs Companies. Darrick Wrenn never received any referrals in his name to the MFCU. Darrick Wrenn did not date or marry Ms. Briggs before March 2012. Darrick Wrenn was only a helper as Briggs Companies and never was a provider. Mr. Wrenn attended the panel hearing in only to support Ms. Briggs as a husband. Darrick Wrenn married Janice Wrenn June 28, 2013. Yet Mr. Wrenn has been established as an employee, owner, and provider of Briggs Companies and Options Unlimited with the MFCU and Attorney Generals filings in state court.

  • Mykel Fry and Thomas Siems (“the Parties”) 

Mykel Fry works as an attorney for the Medicaid Fraud Control Unit and Assistant Attorney General. Thomas Siems works 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 Jeremiah Streck (OHCA employee) with incomplete referral requirements that is according to 42 CFR 455.13-Methodolgy. The referral was also sent over to the MFCU with only one of Briggs companies (Briggs Therapeutic CDC out of four of Ms. Briggs companies). Ms. Briggs owned four companies with four separate provider contracts. 

Ms. Fry as the Director of the MFCU aided and embedded Agent Thomas Siems to falsify that Darrick Wrenn was part of being an owner and provider of Briggs Companies and Options Unlimited; and that he was part of an audit conducted on Briggs 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 Briggs companies and the Wrenn’s issue with due process needs to be taken up in civil court. 

Mr. Siems investigation never demonstrated nor concluded that there were indicia of reliability (42 CFR 405.370) to support any credible allegations of fraud.

Mr. Siems continued with an investigation of Janice Wrenn without procedural due process from the Oklahoma Health Care Authority upon receiving the complaint and or referrals from Travis Kirkpatrick and Jeremiah Streck. Agent Thomas Siems falsified a statement in the probable cause affidavit that there was an audit conducted on Briggs 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 Briggs companies.

The Parties failed to complete a full investigation 42 CFR 455.15 upon receiving the referral from Jeremiah Streck after June 10, 2013. Ms. Fry 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. Ms. Fry as demonstrated in the motion hearing reports, continues to deny identifying any overpayment claims of the credible allegations of fraud of filed charges of Janice Wrenn, Briggs Companies or Options Unlimited. 

The Parties failed to complete resolution of full investigation 42 CFR 455.16. Ms. Fry never presented any overpayments or recovery of payments to Janice Wrenn or Briggs Companies or Options Unlimited 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 Briggs Companies and Options Unlimited. 

The Parties failed to suspend and coordinate suspension of payment with the state agency (Oklahoma Health Care Authority) and Options Unlimited when or if billing became questionable upon receiving complaints from OHCA.

OHCA has never had any mentioning in Briggs Companies termination letter, panel hearing, Kimberly Shoals (provider of Options Unlimited) nor any state witnesses at the preliminary hearing that false claims were billed under Briggs Companies provider numbers nor Options Unlimited 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 Brigg’s termination was fraudulent and falsely labeled as Options claims. Janice Briggs has yet to receive any overpayment of claims from the Oklahoma Health Care Authority or MFCU to support allegations of Fraud. Janice Briggs has only received payment amounts from the Attorney Generals Probable Cause Affidavit and never presented in any previous discovery material or requests from Mrs. Wrenn in state courts.

The Parties are aware of procedural due process with Oklahoma Health Care Authority based on Options Unlimited receiving an audit June 2013, and Ms. Kimberly Shoals 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 Ms. Kimberly Shoals (provider of Options Unlimited) 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”).

Scott Pruitt worked as Attorney General for the state of Oklahoma from January 11, 2011-Februrary 17, 2017. Mike Hunter 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. Janice Wrenn previous Briggs was never given due process prior to filing of charges. And continued to establish in court that Mrs. Wrenn preliminary hearing was her 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. Mr. Pruitt’s office continued to investigate Plaintiff with Medicaid Fraud as a provider after the termination of her contracts as a provider May 16, 2013. 

The Parties’ assistant Lory Dewey demonstrated in emails that she was unlawfully investigating Ms. Brigg facilities after the issue was resolved with DHS called in a complaint. Ms. Briggs resolved this matter with her Attorney of the misunderstanding with her previous held Daycare license that was terminated prior to her beginning her day treatment services. Ms. Dewey emails that were demonstrated in discovery demonstrates harassment and intimidation by contacting Mr. Etchinson with Oklahoma Health Care Authority to look at billing patterns after Department of Human Services called in a complaint of confusion about the services Ms. Briggs was offering. Mr. Etchinson now works for the AG office and has become one of their state witnesses.

Lory Dewey

Lory Dewey works as the Assistant Attorney General in the state of Oklahoma.

Ms. Dewey has established untrue statements of Mr. Wrenn as a defendant that has had his contracts with OHCA terminated as well as rendered services as provider. As Assistant Attorney General to Mr. Hunter. Ms. Dewey continue to represent false information upon Mr. Wrenn in state court with failure of due process.

Ms. Dewey failed to enforce the laws that were mandated by the legislative body and the House of Representatives. 

Ms. Dewey 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. Janice Wrenn previous Briggs was never given due process prior to filing of charges. And continued to establish in court that Mrs. Wrenn preliminary hearing was her due process as stated in the motions. 

Ms. Dewey 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. Mr. Pruitt’s office continued to investigate Plaintiff with Medicaid Fraud as a provider after the termination of her contracts as a provider May 16, 2013. 

Ms. Lory Dewey demonstrated in emails that she was unlawfully investigating Ms. Brigg facilities after the issue was resolved with DHS called in a complaint. Ms. Briggs resolved this matter with her Attorney of the misunderstanding with her previous held Daycare license that was terminated prior to her beginning her day treatment services. Ms. Dewey emails that were demonstrated in discovery demonstrates harassment and intimidation by contacting Mr. Etchinson with Oklahoma Health Care Authority to look at billing patterns after Department of Human Services called in a complaint of confusion about the services Ms. Briggs was offering. Mr. Etchinson now works for the AG office and has become one of their state witnesses.

Ms. Dewey 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 Briggs Companies nor Options Unlimited. 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 Briggs Companies nor Options Unlimited. See attachment of Oklahoma False Claims Statues, page 3-4. It follows; Oklahoma Health Care Authority never presented nor gave any adverse actions to Janice Briggs-Wrenn, Darrick Wrenn, nor Kimberly Shoals for Options Unlimited 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 Janice Briggs-Wrenn and Darrick Wrenn 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 Janice and Darrick Wrenns’ 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 Holly Rictor, 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. Ms. Rictor concluded that on the day she testified, no claims were turned over for Options Unlimited. They did not even question her about any of Briggs companies claims. Janice Wrenn and Darrick Wrenn has spoken to Bill Brooks, Director of CMS for Regional Office 6, who stated that as of July 2019, there was no claims overturned or adverse actions for Janice Wrenn, Briggs companies nor Options Unlimited. According to NPPD-there were no adverse actions reported on any Briggs 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 Travis Kirkpatrick signed off by Jeremiah Streck, was only sent on one of four of Briggs 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 Janice Briggs (Wrenn/Briggs 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, Briggs companies received three weeks of payments after the termination of contracts. See bank statement. Janice Briggs-Wrenn could not appeal any claims because there wasn’t any overpayment of any false claims presented upon Briggs termination of contract; although OHCA alleged there were false claims that Briggs companies billed on. See termination letter and Outcome letter of panel hearing. They never did this procedure for the alleged false claims owning for Options Unlimited as well. Once Janice Wrenn and Darrick Wrenn 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 RIGTS 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 Janice’s OHCA contracts, and never conducted an inspection of the premises for purposes of investigating the claims.

Besides, Agent Siems provided false information that he conducted a preliminary investigation of fraud in the Brigg’s companies. See preliminary hearing transcript, Day 1. Notably, Agent Siems’ 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 Agent officer Thomas Siems painted a false picture for the court- that during his investigation Agent Siems found that OHCA conducted an audit of Briggs (Janice’s Business).

Susan Lowry testified that she does not remember doing an audit for Briggs, after being told by her superior that Briggs 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). 

Ms. Shoals 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 Ms. Shoals and the Attorney General, the Attorney General’s office awarded itself $154,600.75 from Ms. Shoals, of Medicaid monies in restitution.

Petitioners further contend that since the inception of the Attorney General’s illegal deferred prosecution agreement with Ms. Shoals, 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-Kimberly Shoal’s testimony; Joint Motion to Dismiss. The state never placed in a supplemental court order for Shoals’ restitution, while Kimberly Shoals 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 Holly Rictor states that as of 2018 none of those claims have been voided or returned. When Ms. Shoals 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 Holly Rictor, 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-Kimberly Shoals.

  • 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 Dewey and Mykel Fry’s concealment of Shoals’ 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 Dewey and Fry has concealed exculpatory evidence of the restitution payments received from Kimberly Shoals and the victims of the progress note claims of payments from Options Unlimited that is in regulation to do so in her blind pursuit of Defendants, despite her lack of probable cause.

Judge Coyle

The Petitioners’ attorney, the state, and Judge Coyle 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 Coyle 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 Options Unlimited Agency. Notably, the provider and owner of Options Unlimited 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 Henderson

On the 22nd day of March 2019, Judge Henderson told the Petitioners that their only remedy for prosecutorial misconduct is resolution through a complaint with the Oklahoma Bar Association. It follows; Judge Henderson 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-Prelimnary Investigation. If Judge Timothy Henderson 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 Henderson 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 Henderson had previously addressed the to the prosecutors during the Motion for Discovery for the prosecutors to turn in all exculpatory evidence, Judge Henderson continued to allow the prosecutors to withhold exculpatory evidence during the second motions hearing. Judge Henderson 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 Persona

Judge Larry Shaw allowed the prosecutors to withhold evidence from both the AAG and attorney Laura Neal and Eric Bayat 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 Larry Shaw did not object to this matter on March 28, 2017. 

Also, Judge Larry Shaw failed to request the production of documentation from the prosecutors to demonstrate that Kimberly Shoals 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 Janice Wrenn and Darrick Wrenn owes; to also give the claims and proof of payments that have been paid from Kimberly Shoals $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 Options approved all individual providers contract in order for them to bill claims under Options company provider number. Notably, Briggs contract was terminated May 16, 2013. Briggs did not operate nor control Options management and billing operations. See preliminary hearing transcript Pg. 74. Line 17-25. 

Shoals 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. Shoals also admitted that she brought Briggs under her Milan system.   See preliminary hearing Pg. 208. She stated that Briggs did not have their own provider number, so all the claims became options claims, and that that Briggs didn’t provide any services, she just did supervision.  See preliminary hearing Pg. 209. Line 8-12. 

Also, Siems admits to not investigating Cumming’s signatures and copies of the progress notes. See preliminary hearing pg. 102. Siems also admits to not verifying when Cumming left Briggs employment, which is crucial evidence of Petitioners’ innocence. See preliminary hearing pg. 103. He admits to having Cumming’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, Siems admitted that Briggs 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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