Roggemann v. Bane

Mercure, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Social Services which, inter alia, excluded petitioner from participation in the Medicaid program for a period of two years.

Petitioner, a physician specializing in internal medicine, participated in the Medicaid program. Respondent Department of Social Services conducted an audit of services ordered by petitioner for the period June 6, 1988 to February 13, 1989, involving a sample of 100 provider-ordered services (numbered 101 through 200) valued at $1,788 paid to dispensing and service providers out of a universe of 27,365 claims. In January 1992, the Department notified petitioner that it was disallowing 11 of the sampled services, resulting in a projected disallowance of $77,413, and that it had determined to exclude him from the Medicaid program for two years based upon its finding that petitioner had ordered unnecessary and inappropriate prescriptions and tests and failed to fully document the need for the medications and services in his patients’ charts, in violation of 18 NYCRR 515.2 (b) (1) (i) (c) and 515.2 (b) (6) and (11). Ultimately, following a hearing before an Administrative Law Judge (hereinafter ALJ), it was found that petitioner’s charts did not support eight tests or prescriptions ordered, resulting in a disallowance of $68,190.84, which the Department was authorized to recover from petitioner. In addition, the ALJ upheld the penalty of exclusion from the Medicaid program for a period of two years. Petitioner then brought this CPLR article 78 proceeding to challenge the Department’s determination.

Petitioner’s primary contention is that there was not substantial evidence in the record to support the determination finding him guilty of committing an unacceptable practice. We disagree. As a threshold matter, we reject the contention that petitioner was found guilty of violating only 18 NYCRR 515.2 (b) (6) by "[flailing to maintain or to make available for purposes of audit or investigation records necessary to fully disclose the medical necessity for and the nature and extent of the medical care, services or supplies furnished, or to comply with other requirements of this Title” (see, e.g., Matter of Koh v Perales, 173 AD2d 477, lv denied 78 NY2d 859; Matter of Metzies Shoe Brooklyn N. Y. Corp. v New York State Dept. of Social Servs., 151 AD2d 675). The central thrust of the AU’s determination was that, in the absence of documentation to support the medical basis and specific need for the services ordered or prescribed by petitioner (see, 18 NYCRR 518.3 [b]), petitioner was guilty of causing claims to be submitted for "medical care, services or supplies provided at a frequency or in an amount not medically necessary”, in violation of 18 NYCRR 515.2 (b) (1) (i) (c) (cf., Matter of Herzog v Bane, 195 AD2d 787, 788-789). Thus viewed, there is no question that, despite the existence of contrary evidence (see, Matter of Berenhaus v Ward, 70 NY2d 436, 443-444), the testimony of the Department’s expert, Robert Matz, provided adequate evidentiary support for the ALJ’s findings. A brief summary of Matz’s testimony follows.

Sample No. 121. Matz testified that on September 23, 1988, petitioner ordered a rheumatoid autoimmune profile, including a deoxyribonucleic acid antibody (anti-DNA) test, used in the diagnosis of a group of rheumatoid or collagen vascular diseases. In this patient, the only charted indication of possible joint involvement was back pain which, in the absence of a physical examination confirming an actual or suspected rheumatoid condition, was insufficient to justify an anti-DNA test.

Sample No. 169. Matz testified that the notations in petitioner’s chart, indicating that the patient complained of chest tightness and back pain, were insufficient to justify the thyroid stimulating hormone (TSH) test that petitioner ordered to rule out hypothyroidism.

Sample No. 123. On June 27, 1988, petitioner prescribed Elavil, a tricyclic antidepressant that Matz testified was usually used for "major depressive disorders”. According to Matz, petitioner’s ultimate diagnosis of "masked depression” was not recorded in the patient’s chart at the time the drug was prescribed and was not in any event supported by the recorded history and clinical findings stated therein.

Sample Nos. 125, 151, 164 and 184. All of these samples involved petitioner’s prescription of H2 histamine receptor blockers, used in the treatment of peptic ulcer disease by decreasing the stomach acid level. In sample No. 125, Matz testified that there was not a sufficient recorded history or symptoms of ulcer disease to justify prescription of the drug Zantac. Although petitioner noted a past history of peptic ulcer disease and abdominal pain upon examination, Matz opined that a determination could not properly be made to give an H2 blocker in the absence of an indication as to when or how the prior diagnosis of peptic ulcer was made, whether the current abdominal pain is typical of this patient’s ulcer symptoms, whether the patient had been previously administered an H2 blocker and, if so, how the symptoms responded. Matz testified that the same infirmities caused the disallowances of sample Nos. 151 and 164, also involving Zantac, and sample No. 184, involving Tagament.

Sample No. 138. Matz disallowed petitioner’s prescription of Ceclor, a broad-spectrum antibiotic, for an intravenous drug abuser diagnosed as having a mitral valve prolapse with mitral regurgitation because no invasive procedure was contemplated and he found no documentation of active infection.

Petitioner’s remaining contentions do not warrant extended discussion. The record does not support the contention that the decision to conduct an audit, the actual audit findings or the ALJ’s subsequent determination were motivated by malice or affected by bias. Further, the ALJ did not deprive petitioner of constitutional due process in rejecting petitioner’s challenge to the universe of claims, supported by nothing but conjecture that substantial numbers of the prescriptions and tests may not have been ordered by petitioner but were the result of fraud on the part of the pharmacy or testing laboratory. We note that petitioner made no competent offer of proof on the issues of malice and bias or to overcome the regulatory presumption as to the accuracy of the Department’s computer-generated list of payments (see, 18 NYCRR 519.18 [f]). Similarly, petitioner’s challenge to the validity of the Department’s statistical sampling method was not supported by the required expert testimony (see, 18 NYCRR 519.18 [g]). As a final matter, although no doubt severe, we cannot say that the penalty imposed is " ' "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness” ’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 233, quoting Matter of Stolz v Board of Regents, 4 AD2d 361, 364; see, Schaubman v Blum, 49 NY2d 375, 380). Petitioner’s remaining contentions have been considered and rejected.

Crew III, Weiss and Yesawich Jr., JJ., concur.