I respectfully dissent. Testimony before the Administrative Law Judge (hereinafter ALJ) disclosed that petitioner devotes his practice to patients in the lower socioeconomic strata of society whom he treats at three small clinics located in Harlem and the South Bronx. His patients include drug addicts and alcoholics. Petitioner has been in the Medicaid program since 1978. He was audited in July 1988 and reenrolled in the Medicaid program two weeks after the audit without disallowance. In 1990, however, respondent Department of Social Services audited petitioner’s records for the period from June 1988 to February 1989, and this time alleged improprieties were found which gave rise to this CPLR article 78 proceeding.
The Department charged petitioner with unacceptable practices under 18 NYCRR 515.2 (b) (1) (i) (c), i.e., submitting claims for medical care, services or supplies which were not medically necessary, and with violating 18 NYCRR 515.2 (b) (6) and (11), i.e., furnishing or ordering medical care, services or supplies that were excessive or not medically indicated and by failing to document the need for these services and medications in his records.
As a result of the Department’s review of 100 provider-ordered services, 11 charges of unacceptable practices were lodged against petitioner, three of which were dismissed. The ALJ found that petitioner had caused Medicaid overpayments totaling $249 as to eight patients, based on petitioner’s failure to present sufficient documentation of the medical basis and need for the medications and tests prescribed by him for the patients.
Throughout the hearing before the ALJ, the testimony focused on whether petitioner’s selected courses of treatment were supported by sound medical judgment and the existing diagnosis and entries in his patient charts, rather than whether petitioner had failed to properly maintain his patients’ medical records. No evidence surfaced showing that petitioner’s records were either missing, illegible or that they failed to record essential information such as a patient’s complaint, history, physical condition or diagnosis. Rather, the dispute centered on whether the existing notations in petition*626er’s records justified the particular medical services and/or medications ordered. No specific finding was made that the tests and prescriptions were medically inappropriate, but rather that the Department’s expert would have treated the patients in question otherwise. The Department relied totally on the testimony of expert medical witness Robert Matz, who offered the only evidence at the hearing vis a vis accepted standards of recordkeeping. It was the Department’s burden to establish the existence of the standards which petitioner is alleged to have violated (see, 18 NYCRR 519.18 [d]). Matz’s testimony does not sustain the charge of inadequate record-keeping as a matter of law. Here there was no lack of basic data regarding each patient, which has been found to be essential in the relevant case law (see, Matter of Koh v Perales, 173 AD2d 477, lv denied 78 NY2d 859).
The gravamen of the Department’s charge is that the services rendered were inappropriate and unnecessary. Although Matz was called to challenge petitioner’s recordkeeping practices, the proceeding became a challenge to petitioner’s medical judgment despite the fact that the validity of petitioner’s choices of treatment in regard to these patients was not at issue. Petitioner was not found guilty of furnishing or ordering excessive services, as defined in 18 NYCRR 515.2 (b) (11), but of "unacceptable recordkeeping” as defined in 18 NYCRR 515.2 (b) (6). The question of medical necessity for a test (and, by logical extension, for a medication) is a question distinct from whether there are deficiencies in petitioner’s recordkeeping (see, Matter of Herzog v Bane, 195 AD2d 787).
As a final note, I must comment on the shockingly severe penalty imposed here considering the benign nature of the alleged "unacceptable recordkeeping”. A two-year suspension from the Medicaid program and a penalty of over $68,000, plus interest, in a matter wherein petitioner was found guilty of inadequate recordkeeping in eight cases with a loss of $249 in overpayments to Medicaid, where the conduct of petitioner was not fraught with an intent to defraud, where his patients suffered no adverse effects, and where petitioner’s previous 12-year record is spotless (compare, Matter of Clin Path v New York State Dept. of Social Servs., 193 AD2d 1034, 1036; Matter of Inter-City Med. Labs, v Perales, 186 AD2d 655), shocks the conscience. This matter should be remitted, in any event, for the imposition of a more appropriate sanction (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233).
The determination should be annulled.
*627Adjudged that the determination is confirmed, without costs, and petition dismissed.