| Matter of Kee Yee Shum v Daines |
| 2009 NY Slip Op 09582 [68 AD3d 1503] |
| December 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Kee Yee Shum, Petitioner, v Richard F.Daines, as Commissioner of Health, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (James M. Hershler of counsel), forrespondents.
Mercure, J.P. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant toPublic Health Law § 230-c [5]) to review a determination of the Hearing Committee ofrespondent State Board for Professional Medical Conduct which censured and reprimandedpetitioner.
Petitioner has been licensed to practice medicine in New York since 1982. He came underscrutiny due to his purchase of oncological drugs from Canada, which federal investigatorssuspected—and petitioner steadfastly denied—he had inappropriately billed toMedicare. The investigation was ultimately resolved by a settlement agreement whereinpetitioner and his wife agreed to pay the United States certain sums without making any"admission of liability."
Thereafter, the Bureau of Professional Medical Conduct commenced a referral proceedingagainst petitioner pursuant to Public Health Law § 230 (10) (p), alleging professionalmisconduct solely based upon the settlement agreement resolving the assertions of improperMedicare billing (see Education Law § 6530 [9] [c]). Following an expeditedhearing, a hearing [*2]committee sustained the charge and issueda censure and reprimand.[FN1] Petitioner commenced this CPLR article 78 proceeding challenging the Hearing Committee'sdetermination. We agree with petitioner that the Hearing Committee improperly determined thatthe settlement agreement fell within the ambit of Education Law § 6530 (9) (c) and annulits determination.
If the terms of a statute are clear and unambiguous, their plain meaning will be dispositive(see Matter of Orens v Novello, 99 NY2d 180, 185 [2002]). Moreover, we will notaccord any special deference to the Hearing Committee's interpretation of Education Law§ 6530 (9) (c), as the question presented is one of pure statutory interpretation (seeMatter of Polan v State of N.Y. Ins. Dept., 3 NY3d 54, 58 [2004]). That provision defines asprofessional misconduct the situation where a physician has "been found guilty in anadjudicatory proceeding of violating a state or federal statute or regulation, pursuant to a finaldecision or determination, and when no appeal is pending, or after resolution of theproceeding by stipulation or agreement, and when the violation would constituteprofessional misconduct pursuant to this section" (Education Law § 6530 [9] [c] [emphasisadded]). Affording this unambiguous language its plain meaning, a referral proceeding wouldonly be appropriate if the stipulation in question resolved an adjudicatory proceeding. Indeed, wehave previously noted that this provision requires finality in an underlying administrativeproceeding (see Matter of Ricci v Chassin, 220 AD2d 828, 829 [1995]). Here, the soleunderlying proceeding was a civil action under the False Claims Act (31 USC § 3729et seq.) dealing with inappropriate Medicare billing for Canadian oncologicaldrugs.[FN2] While the federal investigation of petitioner was prompted by that action, the record does notreflect that petitioner was a named party in it or any other proceeding, and the settlementagreement was intended to avoid the commencement of such proceedings. Accordingly, weconclude that the Hearing Committee erroneously determined that the settlement agreement fellunder the terms of Education Law § 6530 (9) (c).
In light of the foregoing, we need not address petitioner's alternate ground for annulment.
Spain, Rose, Kane and Garry, JJ., concur. Adjudged that the determination is annulled,without costs, and petition granted.
Footnote 1: Where, as here, a violation ofEducation Law § 6530 (9) is claimed, "Public Health Law § 230 (10) (p) providesfor an expedited hearing limited to the nature and severity of the penalty to be imposed upon thelicensee" (Matter of Wolkoff v Chassin, 89 NY2d 250, 252 n [1996]; see Matter ofZahl v Daines, 63 AD3d 1314, 1314 n [2009]).
Footnote 2: An adjudicatory proceeding isdefined as "any activity which is not a rule making proceeding or an employee disciplinaryaction before an agency," which would seemingly exclude a lawsuit from its scope (StateAdministrative Procedure Act § 102 [3]; see State Administrative Procedure Act§ 102 [1]; §§ 301, 302; see e.g. Matter of Board of Educ. ofUnion-Endicott Cent. School Dist. v New York State Pub. Empl. Relations Bd., 233 AD2d602, 603 [1996]). Given the lack of discussion on that point by the parties, however, we willassume without deciding that a lawsuit could constitute an adjudicatory proceeding.