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State v. Smith

November 30, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DWAYNE SMITH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-11-0027.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 9, 2009

Before Judges Yannotti and Chambers.

Defendant Dwayne Smith was tried before a jury and found guilty of fourth degree health care claims fraud, in violation of N.J.S.A. 2C:21-4.3(d). Defendant was sentenced to two years of probation and ordered to make restitution in the amount of $8670, with payments of $100 per month. In this appeal, defendant challenges his conviction and the restitution order. For the reasons that follow, we affirm defendant's conviction and remand for a restitution hearing.

I.

We briefly state the relevant facts, drawn from the record. Defendant was charged under State Grand Jury No. 05-10-00178-S with second degree health care claims fraud, contrary to N.J.S.A. 2C:21-4.3(c); and third degree Medicaid Fraud, in violation of N.J.S.A. 30:4D-17(b).

At trial, Dennis Doderer (Doderer), the Deputy Assistant Director of the Division of Medical Assistance and Health Services in the New Jersey Department of Human Services (Division), testified that Medicaid is a federal-state program that pays for health care services that are provided to eligible persons. The Division is responsible for administering New Jersey Medicaid Family Care program, and contracted with Unisys, a data processing company, to manage the claim payments.

Doderer explained that the Medicaid program recognizes and pays certain costs incurred by Medicaid beneficiaries, including livery services for transportation to sites for medical care. Persons who regularly provide livery services to Medicaid beneficiaries must obtain prior authorization from the State.

In June 1990, defendant and Mark J. Williams (Williams), were engaged in a business known as Smith and Williams Transportation Livery Service (SWT). SWT submitted an application to the Division for authorization to provide livery transportation services to Medicaid beneficiaries. Defendant and Williams signed the application, thereby agreeing to the terms and conditions of participating in the program. On August 1, 1990, the Division advised SWT that it had approved its provider application, effective July 23, 1990, and furnished SWT with a copy of its rules and regulations.

In September 2003, defendant submitted an application to the Division for authorization to continue providing livery services to Medicaid beneficiaries. The Division approved the application and defendant executed a new provider agreement on SWT's behalf. In the agreement, defendant was identified as SWT's President. Defendant also signed a form, dated September 15, 2003, which identified him as the person at SWT who is responsible for signing and submitting all provider claims to Medicaid.

Doderer further testified that a provider seeking reimbursement under the Medicaid program must submit a claim form with all pertinent information related to the particular service. Among other things, the form must identify the beneficiary and the date of service. Livery providers also must detail the transportation service for which payment is sought, state the fee charged, and submit the claim to Unisys for processing. In addition, the livery providers must complete "trip sheets" for the services and maintain those documents for at least five years.

Doderer said that New Jersey processes more than forty million Medicaid claims a year for a variety of providers and, consequently, cannot review each and every claim. He stated that the State relies upon providers to furnish the "necessary information on the claim form[.]" Doderer asserted that the State relies "heavily on the integrity of the provider to . . . submit a legitimate claim form."

The State also presented evidence that SWT submitted twenty-seven claims for livery services that SWT said were provided to E.D. in the period from May 5, 2003, to January 29, 2004. SWT did not have any trip sheets for these claims. Moreover, there were no documents substantiating that E.D. had medical appointments on the dates the services were purportedly provided. Seven of the claims were for transportation services supposedly provided while E.D. was hospitalized. Four of the claims related to a time when E.D. was confined to a wheelchair.

Medicaid does not pay for livery services for persons who use wheelchairs. SWT was paid $858 on these claims.

In addition, the State established that SWT submitted twenty claims for livery services purportedly provided to M.B. in the period from September 12, 2003, to March 30, 2004. SWT did not have trip sheets for these claims, and there was no documentation indicating that M.B. had medical appointments on the dates SWT claimed the services were provided. The total amount of the claims was $960; SWT was paid $912 on nineteen of the claims.

The State also established that SWT submitted five claims for livery services SWT said it provided to M.T. in January 2004. SWT did not have any trip sheets for these claims, and there were no documents indicating that M.T. had any medical appointments on four of the dates SWT purportedly provided the services. The fifth claim was for services supposedly provided on a date when M.T. had a medical appointment with a doctor who had an office on the ground floor of M.T.'s building. The total amount of these five claims was $150. SWT received payment for all five claims.

The State additionally established that SWT submitted 156 claims for livery services purportedly provided to E.F., in the period from March 21, 2003, through May 28, 2004. SWT had only fourteen trip sheets for these claims, and there was no documentation indicating that E.F. had medical appointments on the dates these services were supposedly provided. The total amount of the claims was $5262. SWT received payment on all of these claims.

The State also showed that SWT provided livery services to S.B., a four-year old child, whose grandmother accompanied him on all of his doctors' visits. SWT submitted forty-five claims for livery services purportedly provided to S.B. and his grandmother from October 27, 2003, to May 17, 2004, but there was no documentation indicating that S.B. or his grandmother had medical appointments on the dates SWT claimed the services were provided. Moreover, SWT had a trip ...


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