Vaynshelbaum v Daines

[*1] Vaynshelbaum v Daines 2011 NY Slip Op 50220(U) Decided on February 17, 2011 Supreme Court, New York County Jaffe, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 17, 2011
Supreme Court, New York County

Yefim Vaynshelbaum, MD, Petitioner,

against

Richard F. Daines, MD, Commissioner of the New York State Department of Health, and JAMES G. SHEEHAN, as Inspector General of the Office of the Medicaid Inspector General, , Respondents.



111318/10



For petitioner:

Jeffrey A. Granat, Esq.

Jacobson Goldberg & Kolb, LLP

585 Steward Avenue

Garden City, NY 11530

516-222-2330

For respondents:

Francis Ruddy, Sr. Atty.

Office of the Medicaid Insp. Gen.

Atty Gen of the State of New York

120 Broadway, 24th Floor

New York, New York 10271

212-416-8590

Barbara Jaffe, J.

By notice of petition dated August 23, 2010, petitioner seeks, pursuant to CPLR 7803, an order vacating, annulling, and setting aside, as arbitrary, capricious, an abuse of discretion, and affected by an error of law, the denial by the Department of Health's (DOH) Office of the Medicaid Inspector General (OMIG) of his application for reinstatement in the Medicaid Program or, in the alternative, removing his name from the Medicaid Restricted, Terminated or Excluded Individual List (DQ list) on the ground that the listing renders him unemployable by any entity that bills Medicaid.

By verified answer dated October 7, 2010, respondents deny the pertinent allegations [*2]underlying the petition and contend, as an affirmative defense, that the OMIG rationally denied petitioner's application and administrative appeal. They ask that the petition be dismissed on the merits and as a matter of law.

I. BACKGROUND

A. Medicaid program

Pursuant to New York Social Services Law § 363-a and New York Public Health Law (PHL) § 201.1(v), DOH supervises the New York State Medicaid program, having taken it over from the Department of Social Services (DSS). (Affirmation of Francis Ruddy, Esq., dated Oct. 6, 2010 [Ruddy Aff.]). Before a medical provider may receive reimbursement from Medicaid, he or she must first enroll as a Medicaid provider. (18 NYCRR 504.1). In deciding whether to approve a provider for the program, DOH may require the provider to provide information "relative to the applicant's ability to provide high-quality care, services and supplies and to be financially responsible." (18 NYCRR 504.2[c]). After receiving the provider's application, DOH investigates and then either approves it or denies it "if it is in the best interest of the medical assistance program to do so, specifying the reasons for denial." (18 NYCRR 504.4[a], [e]).

Pursuant to 18 NYCRR 504.5, in determining whether to approve an application, DOH may consider the following factors, as pertinent here:

(2)any previous or current suspension, exclusion or involuntary withdrawal from participation in the medical assistance program . . .; (9)a prior finding of having engaged in an unacceptable practice in the medical assistance program . . .;

(10). . . a determination of having engaged in an unacceptable practice in the medical assistance program; (11)a prior finding by a licensing, certifying or professional standards board or agency of the violation of the standards or conditions relating to licensure or certification or as to the quality of services provided;(12)any prior pattern or practices in furnishing medical care, services or supplies and any prior conduct under any private or publicly funded program or policy of insurance; and

(13)any other factor having a direct bearing on the applicant's ability to provide high-quality medical care, services or supplies to recipients of medical assistance benefits, or to be fiscally responsible to the program for care, services or supplies to be furnished under the program including actions by persons affiliated with the applicant.

If an application is denied, the provider may reapply after correcting the factors that led to the denial or after two years if the denial is related to the provider's prior conduct. (18 NYCRR 504.5[d]). After a provider has been accepted into the program, his or her participation may be terminated, suspended or restricted if "the provider has engaged in an unacceptable practice as [*3]set forth in Part 515 of this Title," and is automatically terminated upon the "termination, revocation or suspension of a license to practice a medical profession, or . . . of any registration, certification, license or other approval required to provide medical care, services or supplies under the medical assistance program." (18 NYCRR 504.7[b], [d]).

If DOH determines that a provider has engaged in an unacceptable practice, defined as conduct contrary to: (1) DOH's official rules and regulations; (2) DOH's published fees, rates, claiming instructions or procedures; (3) the official rules and regulations of the Departments of Health, Education and Mental Hygiene, including the latter department's offices and divisions, relating to standards for medical care and services under the program; or (4) the regulations of the Federal Department of Health and Human Services promulgated under title XIX of the Federal Social Security Act (18 NYCRR 515.2[a]), or the "[f]urnishing [of] medical care, services or supplies that fail to meet professionally recognized standards for health care or which are beyond the scope of the person's professional qualifications or licensure" (18 NYCRR 515.2[b][12]), it may exclude the provider from the Medicaid program for a reasonable time or impose other sanctions (18 NYCRR 515.3[a]).

Sanctions may be imposed upon consideration of the following factors: (1) the number and nature of the program violations or other related offenses; (2) the nature and extent of any adverse impact the violations have had on recipients; (3) the amount of damages to the program; (4) mitigating circumstances; (5) other facts related to the nature and seriousness of the violations; and (6) the previous record of the person under the Medicare, Medicaid and social services programs. (18 NYCRR 515.4[b]).

A provider who has been sanctioned may apply for reinstatement to the Medicaid program by submitting an application for enrollment pursuant to 18 NYCRR 504, et seq., and reinstatement may be granted only "if it is reasonably certain that the violation(s) that led to the sanction will not be repeated." (18 NYCRR 515.10).

B. OMIG

The OMIG is an independent office within DOH that was established to prevent, detect, and investigate "fraud, abuse, or illegal acts perpetrated within the medical assistance program, by providers or recipients of medical assistance care, services and supplies." (PHL §§ 30-a[2], 31, 32). Abuse within this context is defined as "practices that are inconsistent with sound fiscal, business, medical or professional practices and which result in unnecessary costs to the medical assistance program, payments for services which were not medically necessary, or payments for services which fail to meet recognized standards for health care." (18 NYCRR 515.1[b]).

Pursuant to section 32 of the Public Health Law, the OMIG has the power and responsibility "to pursue civil and administrative enforcement actions against any individual or entity that engages in fraud, abuse, or illegal or improper acts or unacceptable practices including but not limited to . . . (d) exclusion of providers, vendors and contractors from participation in the program," and in pursuing enforcement actions, the OMIG "shall consider the quality and availability of medical care and services and the best interest of both the medical assistance program and recipients."

C. Petitioner's background

On March 18, 1985, petitioner was licensed to practice medicine by the Department of [*4]Education, and in 1986, was accepted as a Medicaid provider. (Ruddy Aff., Exh. 3). By Notice of Agency Action dated August 28, 1990, DSS, then administrator of the Medicaid program, alleged that petitioner had engaged in unacceptable practices and received Medicaid overpayments by submitting false claims, having unacceptable recordkeeping, and providing excessive services, and stated that it would seek restitution in the amount of $183,499 and petitioner's exclusion from the program for five years. (Id., Exh. 4). On or about September 12, 1990, petitioner was excluded from the Medicaid program for five years. (Id., Exh. 5).

By decision dated April 25, 1994, petitioner's exclusion was upheld on appeal and after a fair hearing before DSS. (Id., Exh. 6). In 1997, the Appellate Division, First Department, upheld the determination on appeal, observing that petitioner had previously committed violations of DSS's regulations by overbilling Medicaid, and finding that the five-year exclusion from the Medicaid program was thus not disproportionate. (Vaynshelbaum v Dowling, 237 AD2d 132 [1997]).

On or about March 22, 1995, petitioner submitted an application for reinstatement to the Medicaid program (Ruddy Aff., Exh. 7), which was denied by letter dated May 15, 1995 on the grounds that petitioner had previously violated the program's regulations and had failed to provide sufficient assurances that the violations would not be repeated (id., Exh. 8).

By letter dated October 2, 2003, the United States Department of Health and Human Services advised petitioner that a review of mammograms performed by him between August 12, 2001 and July 25, 2003 reflected that they "were so inconsistent with established quality standards as to pose a significant risk to individual or public health," and required petitioner to notify all affected patients. (Id., Exh. 9).

Sometime in 2004, New York State's Board for Professional Medical Conduct (BPMC) charged petitioner with one specification of professional misconduct related to his improper handling of mammograms on more than one occasion. (Id., Exh. 10). In November 2004, petitioner signed a consent agreement and order, agreeing not to contest BPMC's charge of misconduct and accepting as a penalty probation for three years under specific terms plus a three-year suspension, which was stayed. (Id.). Petitioner also agreed that his license to practice medicine in New York would be limited permanently to preclude him from performing breast cancer detection evaluations. (Id.). Petitioner's probation ended on November 11, 2007. (Id., Exh. 11).

D. Petitioner's second request for reinstatement

By letter dated December 9, 2008, petitioner submitted an application for reinstatement to the Medicaid program, and also requested that if the OMIG did not reinstate him, that it remove his name from the DQ list. (Id., Exh. 12).

By letter dated April 27, 2009, the OMIG advised petitioner that his request for reinstatement to the Medicaid program was denied, based on 18 NYCRR 504.5(a)(2), (9), (11), (12), and (13) on the grounds that his prior conduct, namely, being excluded from the program in 1990 for "submitting false claims, unacceptable recordkeeping and excessive services," and the 2004 three-year license suspension which resulted in a three-year probationary term, and the permanent license limitation precluding him from performing breast cancer detection evaluations, demonstrates a "pattern of unacceptable medical care." (Id., Exh. 13). The OMIG also stated that petitioner's application and submitted information did not provide "the necessary [*5]assurances that the violations will not reoccur," and advised petitioner that he could reapply for reinstatement in two years. (Id.).

By letters dated May 26, 2010 and July 6, 2010, petitioner's request for reconsideration and for appeal of the April 2009 determination was upheld, and his request to be removed from the DQ list was considered and denied as granting it would allow him to treat Medicare/Medicaid crossover patients. (Id., Exhs. 17, 18). In the July 6, 2010 letter, the Appeals Committee stated that: [It] felt from reviewing the case that [petitioner] knew the mammogram films he was interpreting were of poor quality but he read them anyway. This led the Committee to believe that [petitioner] was not concerned about his quality of care. His license has permanently precluded him from ever performing breast cancer detection evaluations. The Committee was concerned that [petitioner's] questionable skill and quality of work in this area indicates that there would likely be a problem in other areas of radiology; the fact that his quality of work in that area was so bad indicates that this is a provider that is likely to provide poor quality work in other areas. In addition, he showed no remorse and never took responsibility for his poor quality of care.

The Committee thus concluded that petitioner's removal from the DQ list was not "appropriate due to the very poor quality of [his] work and the effect that removal would have on Medicaid recipients." (Id., Exh. 18).

II. CONTENTIONS

Asserting that he has learned from his past errors and relying on his having completed his probation successfully and being permitted by the BPMC to return to unsupervised practice treating all patients subject to his permanent practice restriction, his otherwise unblemished practice in all other areas of diagnostic radiology, and his extensive annual continuing medical education, petitioner alleges that he has provided assurances regarding his ongoing practice of diagnostic radiology sufficient to support his petition. (Verified Petition dated Aug. 23, 2010 [Pet.], Exh. B). He complains that the appearance of his name on the DQ list renders him unemployable by providers that bill Medicaid and that other payors increasingly rely on the list. He also argues that as Education Law § 6532 delegates to the BPMC the administration and interpretation of Article 131-a of the Education Law defining a physician's medical misconduct, the OMIG has no responsibility or rule-making authority over the scope of the practice of medicine. Consequently, petitioner maintains that OMIG's determinations improperly conflict with that of the BPMC and are arbitrary, capricious, an abuse of discretion, and affected by an error of law (Pet., Exh. B), and contends that the punishment of exclusion is unreasonable and unjustified (Pet.).

Respondents contend that the determination denying reinstatement to petitioner was rational and proper based on his repeated commission of unacceptable practices and was not an abuse of discretion as the OMIG has broad discretion to decide whether to reinstate a provider. (Respondents' Memo. of Law, dated Oct. 7, 2010).

III. ANALYSIS

The only questions that may be raised in a proceeding to challenge action or inaction by a [*6]state or local government agency are, in pertinent part, whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion . . . (CPLR 7801, 7803[3]). The determination of an administrative agency, "acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency's determination is supported by the record." (Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v State of NY Div. of Hous. & Community Renewal, 46 AD3d 425, 429 [1st Dept 2007], affd 11 NY3d 859 [2008]).

A. Arbitrary and capricious

In reviewing an administrative agency's determination as to whether it is arbitrary and capricious, the test is whether the determination "is without sound basis in reason and is generally taken without regard to the facts." (Matter of Pell v Bd. of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]; Matter of E.W. Tompkins Co., Inc. v State Univ. of New York, 61 AD3d 1248, 1250 [3d Dept 2009], lv denied 13 NY3d 701; Matter of Mankarios v New York City Taxi and Limousine Commn., 49 AD3d 316, 317 [1st Dept 2008]; Matter of Soho Alliance v New York State Liq. Auth., 32 AD3d 363, 363 [1st Dept 2006]; Matter of Kenton Assoc., Ltd. v Div. of Hous.& Community Renewal, 225 AD2d 349 [1st Dept 1996]).

If the court determines that the administrative determination has a rational basis, the court's inquiry is finished; it may not substitute its judgment for that of the administrative agency. (Paramount Communications, Inc. v Gibraltar Cas. Co., 90 NY2d 507 [1997], lv denied 90 NY2d 1008). Moreover, where a determination is supported by a rational basis, "an administrative agency's construction and interpretation of its own regulations and of the statute under which it functions are entitled to great deference." (Matter of Arif v New York City Taxi and Limousine Commn., 3 AD3d 345 [1st Dept 2004], lv granted 2 NY3d 705, appeal withdrawn 3 NY3d 669).

In the analogous Matter of Brenner v New York State Dept. of Health, the petitioner had previously pleaded guilty to billing Medicaid fraudulently for services he did not provide and his license was thus suspended and stayed, he received two years of probation and paid a fine, and he was prohibited from participating in the Medicaid program; his application for reinstatement to the program was then denied. (43 AD3d 595 [3d Dept 2007]). The court upheld DOH's denial of the application for reinstatement, finding that based on the petitioner's prior conduct, the denial had a rational basis.

Here too, respondents' determination was based on petitioner's prior conduct and an analysis of the specific factors set forth in the regulations. The determination thus had a rational basis and was not arbitrary and capricious. (See Matter of Roggemann v Bane, 223 AD2d 854 [3d Dept 1996] [denial of application for reinstatement not arbitrary and capricious as petitioner's completion of one risk management program and non-binding decision to limit practice did not compel finding that problems leading to exclusion were not likely to recur]; Matter of HMP Pharm. Corp. v Perales, 204 AD2d 639 [2d Dept 1994] [respondent's termination of Medicaid contract with provider it had determined had provided poor services rational and not arbitrary and capricious]; Matter of Rockland Medilabs Inc. v New York State Dept. of Social Servs., 186 [*7]AD2d 953 [3d Dept 1992], lv denied 81 NY2d 710 [1993] [respondent provided summary of factors considered in denying petitioner reinstatement and found that petitioner had failed to show that improper acts would not be repeated; as petitioner did not contest underlying facts and instead concentrated on measures it had undertaken to prevent reoccurrence of prior errors, it was up to respondent to draw conclusions based on facts and court would not substitute judgment for that of respondent]; Matter of ADL, Inc. v Perales, 171 AD2d 442 [1st Dept 1991], lv denied 78 NY2d 851 [denial of petitioner's "application for re-enrollment as a Medicaid provider cannot be considered arbitrary or capricious, in light of numerous documented practice deficiencies detected through State Department of Health surveys of petitioner-appellant's laboratory practices," and in light of petitioner's improper practices and services]; see also Matter of Ramanadhan v Wing, 257 AD2d 383 [1st Dept 1999] [physician not entitled to injunction prohibiting DSS from excluding her from participation in Medicaid program as she failed to establish likelihood of success on merits as DSS had found poor overall patient care and one potentially dangerous case in physician's practice]; Matter of Kleynerman v Wing, 242 AD2d 221 [1st Dept 1997] [injunction preventing physician from exclusion from program not warranted as physician had been found deficient in quality of patient care twice in four years]).

While petitioner argues that the penalty of exclusion is disproportionate, he has not been excluded from the program; rather, his application for reinstatement was denied, and he may again apply for reinstatement after April 27, 2011. Consequently, the penalty imposed is neither disproportionate nor excessive. (See Matter of Imperato v Bane, 202 AD2d 377 [1st Dept 1994] [questioning whether denial of application for reinstatement could be considered penalty, and upholding denial based on petitioner's prior bribery conviction and other factors]).

B. Abuse of discretion

Respondents enjoy broad discretion in determining whether to permit a provider to participate in the Medicaid program. (Schaubman v Blum, 49 NY2d 375 [1980] [DSS, "as the agency charged with the responsibility of administering the Medicaid program, must be allowed broad discretion in fashioning administrative sanctions which can adequately protect [the] important public interest" of providing medical services to needy]; Matter of Khawaja v Kaladjian, 207 AD2d 398 [2d Dept 1994]; Matter of ADL, Inc., 171 AD2d at 442; Matter of Bezar v New York State Dept. of Social Servs., 151 AD2d 44 [3d Dept 1989] ["close analysis of the regulatory provisions regarding DSS acceptance or rejection of an application to enroll or reenroll reveals that the agency has a wide, virtually unlimited range of discretion, under guidelines permitting the sole reasons for rejection to be based on policy or subjective factors not susceptible to judicial review"]).

In light of this broad discretion, and for the same reasons discussed above, respondents' decision not to reinstate petitioner to the Medicaid program was not an abuse of discretion. (See Matter of Ashland Pharm., Inc.,233 AD2d at 241 [termination of provider's participation in Medicaid program was not abuse of discretion as inspection found five violations of proper practices]; Matter of Imperato, 202 at AD2d 377 [respondents had discretion to deny reinstatement based on petitioner's "prior bribery conviction, insufficient appreciation of the gravity of the offense, and other factors showing that petitioners' inclusion would not be in the best interest of the Medicaid program"]).

[*8]C. Error in lawThe State has an interest in providing medical services to the needy (Schaubman, 49 NY2d at 375), and "in insuring that the medically indigent receive high quality medical care at reasonable cost through the review provided in the reenrollment process" (Matter of Bezar, 151 AD2d at 50; see also Matter of Ashland Pharm., Inc., 233 AD2d at 241 [discontinuance of provider's participation in program based on five violations of proper practices not disproportionate "in light of the State's interest in assuring the quality of care to Medicaid recipients."]).

In furtherance of this interest, respondents have the authority and responsibility to examine and investigate a Medicaid provider for improper or unacceptable medical practices, not just practices related to fraud or billing. (See 18 NYCRR 504.2[c] [when applying to program, provider must provide information "relative to the applicant's ability to provide high-quality care, services and supplies"]; 18 NYCRR 504.5 [in deciding whether to approve application, DOH may consider whether provider previously engaged in unacceptable practice, violated standards or conditions related to quality of services provided, or any other factor related to provider's ability to provide high-quality medical care]). And the term "unacceptable practice" includes conduct contrary to the rules and regulations of the Departments of Health, Education, and Mental Hygiene relating to standards for medical care and services or the furnishing of medical care that does not meet professional recognized standards. (18 NYCRR 515.2[a], 515.3[a]).

Similarly, the OMIG has the responsibility of investigating abuse, not just fraud, which is defined as practices inconsistent with sound medical or professional practices resulting in payment for services that do not meet recognized standards for health care. (18 NYCRR

515.1[b]). And in pursuing any enforcement actions against a provider, the OMIG must consider the quality of medical care and services and the best interests of Medicaid recipients. (PHL § 32).Thus, in light of the regulations governing respondents' actions, which permit them to sanction and/or refuse to reinstate petitioner for unacceptable medical practices, petitioner has not established that respondents had no authority or exceeded their authority in determining whether he engaged in unacceptable medical practices. (See eg Matter of Medicon Diagnostic Labs., Inc. v Perales, 74 NY2d 539 [1989] ["the agency charged with the responsibility of administering the Medicaid program has inherent authority to protect the quality and value of services rendered by providers in that program"]; Matter of Rubin v Campbell, 48 NY2d 805 [1979] [respondents had power to take remedial measures against providers whose services were found inadequate]; Matter of Kleynerman, 242 AD2d at 222 ["State's interest in the quality of care given by providers under the Medicaid program allows petitioner's disqualification for unacceptable practices"; quality review of petitioner's practices reserved by law to DOH and DSS]; Matter of Karanja v Perales, 163 AD2d 264 [1st Dept 1990], lv denied 76 NY2d 715 [by statute, judgment as to whether petitioner's actions affected his ability to provide high-quality services and supplies to be made by DSS in exercise of its expert discretion]).

Implicit in the many decisions upholding respondents' refusal to permit certain providers from participating in the Medicaid program based on an evaluation of the providers' medical practices and quality of care given to the providers' Medicaid patients is the recognition that respondents have the authority to make such determinations. (Matter of Ramanadhan, 257 AD2d at 384 [upholding provider's exclusion from program based on finding that provider's overall care [*9]of patients was poor and in one case potentially dangerous]; Matter of Kleynerman, 242 AD2d 221 [provider excluded based on evaluation finding him deficient in quality of care given to Medicaid patients]; Matter of Melone v New York State Dept. of Social Servs., 233 AD2d 548, 549 [3d Dept 1996] ["no basis for disturbing respondent's conclusions that a practitioner's demonstrated tendency to engage minor patients in impermissible sexual contact and the continued monitoring of petitioner's practice as a condition of probation implicate his ability to provide quality medical services"]; Matter of HMP Pharm. Corp., 204 AD2d at 640 [observing that providing deficient services to Medicaid patients is sufficient basis to deny provider re-enrollment in program]; Matter of Ekinci v Commr. of New York State Dept. of Social Servs., 205 AD2d 622 [2d Dept 1994] [confirming decision to exclude petitioner from program for five years based on respondent's determination that medical care provided by petitioner did not meet professionally-recognized standards]; Matter of Gupta v New York State Dept. of Social Servs., 208 AD2d 629 [2d Dept 1994] [upholding respondent's determination that petitioner failed to meet professionally-recognized health care standards pursuant to 18 NYCRR 515.2(b)(12)]; Matter of Melendrez v Perales, 173 AD2d 295 [1st Dept 1991] [petitioner's termination from Medicaid program upheld based on peer review of patients' charts which showed improper medical practices]; Matter of Koh v Perales, 173 AD2d 477 [2d Dept 1991] [upholding petitioner's disqualification from program based on finding that petitioner's medical records did not conform to generally-accepted medical standards or Medicaid regulations]).

And in having defined "unacceptable practice" as including conduct contrary to the rules and regulations of the Department of Education relating to medical care standards, the Legislature apparently decided that respondents' authority would encompass the medical standards set forth by the Education Department, not conflict with them. (See eg Matter of Melone, 233 AD2d at 548 [upholding petitioner's denial of reinstatement to Medicaid program despite Education Department's restoration of petitioner's license]; see also Matter of Tobon v Bane, 192 AD2d 851 [3d Dept 1993] [in upholding petitioner's exclusion from Medicaid program, court rejected petitioner's argument that DSS had no authority to review or regulate practice of medicine as petitioner confused right to practice medicine with right to have medical services paid for by Medicaid; respondent only determined that Medicaid would not pay for petitioner's services]).

It thus appears that the OMIG's investigation and evaluation of a provider's practices is a parallel process that is distinct from the Education Department's regulation of a provider's license to practice medicine. (See eg Matter of Choi v State, 74 NY2d 933 [1989] [DSS's determination that physician provided unacceptable care and inappropriate treatment to Medicaid recipients, which resulted in revocation of physician's participation in Medicaid program, was proper predicate for Education Department's suspension of his license as, while DSS did not determine that petitioner had violated Education Law requirements, Education Commissioner properly equated DSS's findings with violations of Education Law]; see also Matter of Tobon, 192 AD2d at 854 [finding that respondent DSS had authority to report information to Office of Professional Medical Conduct which reasonably showed that physician may be guilty of professional misconduct]).

Petitioner relies on Mihailescu v Sheehan, where the court opined, in dicta, that "the legislature did not likely intend that the [OMIG] . . . might second-guess the [BPMC] by also [*10]investigating or evaluating whether the physician in question would present a potential danger to . . . Medicaid recipients." (25 Misc 3d 258 [Sup Ct, New York County 2009]). The court in Mihailescu, however, apparently overlooked decisions recognizing that respondents have the responsibility and authority to investigate whether providers participating in the Medicaid program provide adequate care to Medicaid recipients and sanction those who do not (see eg Matter of Ashland Pharm., Inc., 233 AD2d at 241 [discontinuance of provider's participation in Medicaid program based on five violations of proper practices not disproportionate "in light of the State's interest in assuring the quality of care to Medicaid recipients"]; Matter of Bezar, 151 AD2d at 50 [State has "legitimate interest in insuring that the medically indigent receive high quality medical care at reasonable cost through the review provided in [DSS's] reenrollment process" for program]), and the regulations governing respondents' actions (18 NYCRR 515.1[b] [DOH has authority to investigate practices by providers participating in Medicaid program inconsistent with sound medical or professional practices resulting in payment for services that do not meet recognized standards for health care]; PHL § 32 [OMIG, while pursuing enforcement actions against provider, must consider quality of medical care and services and best interests of Medicaid recipients]).

Moreover, the court in Mihailescu found that the OMIG's denial of the provider's reinstatement to the Medicaid program, based solely on a prior consent agreement between the provider and the BMPC in which the provider had agreed not to contest charges that she had had inappropriate sexual relations with two patients, resulting in a one-year suspension of her licence which was restored upon her compliance with certain conditions, was arbitrary and capricious. (25 Misc 3d at 259-260).

In Matter of Melone, by contrast, the DSS's determination to deny reinstatement to a dentist based solely on the provider's prior license revocation by the Education Department for inappropriate sexual conduct with his patients, which license was later restored, was upheld absent a basis for "disturbing respondent's conclusions that a practitioner's demonstrated tendency to engage minor patients in impermissible sexual contact and the continued monitoring of petitioner's practice as a condition of probation implicate his ability to provide quality medical services." (233 AD2d at 548).

In light of this authority, Mihailescu is not persuasive, and as the petitioner in Mihailescu had apparently been disciplined only once, whereas here, petitioner not only had his license revoked but also had been previously excluded from the Medicaid program for improper billing, it is also inapposite.

To the extent petitioner argues that the Legislature could not or should not have given DOH or the OMIG such broad authority, that contention may not be addressed here. (6 NY Jur 2d, Article 78 § 31 [2011] [validity of legislative act may not be challenged in Article 78 proceeding]; Save Pine Bush, Inc. v City of Albany, 70 NY2d 193 [1987] [same]; Janiak v Town of Greenville, 203 AD2d 329 [2d Dept 1994] [as plaintiff's complaint alleged that defendant exceeded authority in enacting law, Article 78 was improper vehicle for challenge]; see also 6 NY Jur 2d, Article 78 § 52 [while in Article 78 proceeding court may review action by administrative agency to decide whether agency's determination was affected by error of law, it may "not review the propriety or wisdom of a legislative act by an administrative agency"]). [*11]

Finally, petitioner's argument that he is now unemployable is not accurate. Rather, as the Court of Appeals observed in Schaubman: the administrative penalty assessed in this case does not prevent petitioner [ ] from continuing to practice as a pharmacist or petitioner [ ] from operating a pharmacy; it merely terminates the contractual relationship with the Department of Social Services which had allowed the petitioners to participate in the Medicaid program. As the courts of this State have previously noted, a provider of Medicaid services has no vested right to continued participation in the program; rather, such participation is a privilege which may, in proper circumstances, be revoked.

(49 NY2d at 380; see also Matter of Ramanadhan, 257 AD2d at 385 [petitioner not deprived of opportunity to practice profession notwithstanding preference to practice with Medicaid recipients]).

IV. CONCLUSION

For all of the above-stated reasons, it is hereby

ADJUDGED, that the petition is denied and the proceeding is dismissed.

ENTER:

________________________

Barbara Jaffe,J.S.C.

Dated:February 17, 2011

New York, New York