| Matter of Anghel v Daines |
| 2011 NY Slip Op 06050 [86 AD3d 869] |
| July 28, 2011 |
| Appellate Division, Third Department |
| In the Matter of Maria-Lucia Anghel, Petitioner, v RichardF. Daines, as Commissioner of Health, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Kathryn E. Leone of counsel), forrespondents.
Rose, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to PublicHealth Law § 230-c [5]) to review a determination of respondent Hearing Committee ofthe State Board for Professional Medical Conduct which, among other things, revokedpetitioner's license to practice medicine in New York.
Petitioner, a physician board-certified in anesthesiology and pain management and licensedto practice medicine in New York, was charged by the Bureau of Professional Medical Conduct(hereinafter BPMC) with 25 specifications of professional misconduct, including fraudulentpractice, negligence on more than one occasion, incompetence on more than one occasion, grossnegligence, willful failure to comply with federal law and regulations, excessive tests andtreatment and failure to maintain records. The charges related to petitioner's treatment of sevenpatients (hereinafter patients A through G) and her operation of a laboratory at her offices.Following extensive hearings on the matter, respondent Hearing Committee of the State Boardfor Professional Medical Conduct sustained each specification except for the charge ofincompetence, revoked petitioner's license to practice medicine in New York and imposed a$240,000 fine. Petitioner then commenced this CPLR article 78 proceeding challenging that[*2]determination.
Initially, we are unpersuaded by petitioner's assertions that various evidentiary andprocedural errors deprived her of her right to a fair hearing and due process. A petitioner in anadministrative proceeding is not entitled to all of the due process protections that are afforded toa defendant in a criminal action and the rules of evidence are not strictly applied (see Matter of Rigle v Daines, 78 AD3d1249, 1250 [2010], appeal dismissed 16 NY3d 825 [2011]; Matter of D'Souza v New York State Dept.of Health, 68 AD3d 1562, 1563-1564 [2009]; Matter of Conteh v Daines, 52 AD3d 994, 995 [2008]).
Petitioner first challenges the admission of BPMC's exhibit No. 12, a CD containing aspreadsheet data file detailing claims submitted by petitioner to United Healthcare, theadministrator of a healthcare benefit plan, for services she billed from 1994 to 2007 for patientsC through G, and exhibit No. 12A, a hard copy printout of the spreadsheet. We find no recordsupport for petitioner's contentions that the CD and the spreadsheet that were admitted intoevidence at the hearing—and the spreadsheet that is now included in the record onappeal—are illegitimate and/or uncertified copies or that BPMC is withholding copies ofthe CD. Michael Stephano, a United Healthcare employee, testified that he created thespreadsheet using data stored in the regular course of business in United Healthcare's databaseand certified that the data file was a true, complete and accurate record of the claims submittedby petitioner. Although copies of the original CD were apparently made and provided topetitioner and the Administrative Law Judge (hereinafter ALJ) which, when viewed on the ALJ'scomputer, did not appear to be identical to the original CD, the Committee considered theoriginal CD in evidence, which was also projected onto a screen during the hearing.
We also reject petitioner's challenge to the admission of this evidence on the ground that thespreadsheet constituted inadmissible hearsay and was not sufficiently reliable or accurate.Although it was discovered during the hearing that the spreadsheet contained certain date andcode description errors, these errors were, for the most part, not substantive and affected only asmall percentage of the data on the spreadsheet. Also, the Committee was made aware of theerror by petitioner's cross-examination of the witnesses and the admission of a clarifying affidavitfrom Stephano, and the Committee had before it copies of the actual electronic claimsubmissions that petitioner made to United Healthcare from 1999 until 2004, substantiating theentries in the spreadsheet for that period. As the exhibits were properly certified andauthenticated, and given the considerable leeway afforded the admission of evidence at thehearing, we discern no abuse of discretion in the ALJ's decision to admit them.
Petitioner also has not shown that she was deprived of a fair hearing and due process by anyother of the ALJ's various rulings. The ALJ did not abuse his discretion in granting BPMC'smotion to withdraw patient A's testimony without striking all of the charges related to patient A,as patient A's medical records supported the remaining charges related to her. The ALJ also actedwithin the bounds of his authority when he denied petitioner's motion for a mistrial based uponpatient B's failure to return to testify after evidence surfaced calling into question the veracity ofa limited portion of her testimony. Petitioner was able to introduce evidence indicating thatpatient B may have misrepresented her credentials during the hearing and the ALJ advised theCommittee that she did not respond to a subpoena. In sum, the claimed evidentiary errors werenot so severe as to infect the entire proceeding with unfairness given petitioner's full opportunityto contest the evidence against her and present her own case (see Matter of Rigle vDaines, 78 AD3d at 1251; Matter ofTsirelman v Daines, 61 AD3d 1128, 1130-1131 [2009], lv [*3]denied 13 NY3d 709 [2009]).
Petitioner also claims that her due process rights were violated because BPMC did not offerher an additional interview to allow her to respond to allegations concerning patients C throughG before charges relating to those patients were investigated and added (see PublicHealth Law § 230 [10] [a] [iii]). We cannot agree. It is sufficient that petitioner receivedtwo preinvestigatory interviews regarding allegations relating to patients A and B, and BPMCoffered petitioner an additional interview regarding the other patients before the hearing wasconvened, which she declined (see Matter of Galin v DeBuono, 259 AD2d 788, 789[1999], lv denied 93 NY2d 812 [1999]; Matter of Gupta v De Buono, 229 AD2d58, 61-62 [1997]). In any event, petitioner's due process rights were protected by her receipt ofthe detailed amended statement of the charges against her (see Matter of Weg vDeBuono, 269 AD2d 683, 689 [2000], lv denied 94 NY2d 764 [2000]; Matter ofClausen v New York State Dept. of Health, 232 AD2d 917, 919 [1996]; Matter of Guptav De Buono, 229 AD2d at 62). In addition, petitioner was provided adequate time to preparefor the hearing, and the Committee's refusal to grant her a second adjournment was notunreasonable and did not deprive her of due process (see Matter of Laverne v Sobol, 149AD2d 758, 761-762 [1989], lv denied 74 NY2d 610 [1989]). We have also examinedpetitioner's claims that BPMC engaged in misconduct throughout the pendency of theproceedings against her and found them to be wholly unsubstantiated.
Turning to the merits, our review of the Committee's decision is limited to determiningwhether it is supported by substantial evidence (see Matter of D'Angelo v State Bd. for Professional Med. Conduct, 66AD3d 1154, 1155 [2009]; Matter of Tsirelman v Daines, 61 AD3d at 1129). Inmaking this determination, we will defer to the Committee's credibility determinations andresolution of conflicting evidence (seeMatter of Patin v State Bd. for Professional Med. Conduct, 77 AD3d 1211, 1212 [2010];Matter of Ostad v New York State Dept.of Health, 40 AD3d 1251, 1252 [2007]).
Substantial evidence supports the Committee's decision to sustain the specification allegingthat petitioner willfully failed to comply with federal law and regulations governing the practiceof medicine (see Education Law § 6530 [16]). Namely, the Clinical LaboratoryImprovement Amendments of 1988 (hereinafter CLIA) and its regulations require physicians toobtain a CLIA certificate before operating a physician office laboratory (hereinafter POL)(see 42 USC § 263a; 42 CFR part 493). The evidence presented at the hearingestablished that petitioner operated a POL between 1995 and 2003 without obtaining the requiredcertification under CLIA. Although petitioner testified that she was not aware of the certificationrequirement until she became the subject of an investigation in 2003, substantial evidencesupports the Committee's conclusion that petitioner's failure to comply with CLIA was, in fact,willful. Petitioner's knowledge of her obligation to obtain CLIA certification for her POL can beinferred from the fact that, prior to opening her own medical office in 1995, petitioner sharedoffice space with her brother, who is also a physician, utilized his CLIA-certified POL to runblood tests on patients on the same type of equipment that petitioner later used in her POL andwas listed on his CLIA laboratory personnel report as a technical consultant, a positionresponsible for ensuring regulatory compliance. Moreover, while petitioner billed patient A andpatients C through F for blood tests performed in her POL, she typically sent patient G to anoutside laboratory. It is telling that patient G was the only patient who was insured by Medicare,which, unlike other insurance providers, would have required petitioner to provide her CLIAcertification number and would not have reimbursed petitioner for in-office lab work without aCLIA certification. [*4]Petitioner's behavior in disposing of all ofher lab records and equipment when she was informed about a possible CLIA violation alsosupports a finding that her failure to comply with federal law and regulations was willful. Thus,the record reveals substantial evidence to sustain the specification alleging fraudulent practicebased upon petitioner's operation of her POL (see Education Law § 6530 [2], [16]).
Ample record evidence also supports the Committee's findings of fraudulent practice as to allseven patients and excessive tests and treatment as to patient A and patients C through G(see Education Law § 6530 [2], [35]). Fraudulent practice may be established byproof of an intentional misrepresentation or the concealment of a known fact, and intent orknowledge may be inferred from the surrounding circumstances (see Matter of Patin v StateBd. for Professional Med. Conduct, 77 AD3d at 1214; Matter of Ross v State Bd. for Professional Med. Conduct, 45 AD3d927, 929 [2007], lv denied 10 NY3d 701 [2008]). Here, the testimony and themedical evidence in the record established that petitioner had engaged in a pattern of billingfraud over a period of several years. Petitioner routinely took blood draws from patient A andpatients C through G.[FN*]BPMC's expert, Stephan Petranker, a board-certified anesthesiologist and a specialist in painmanagement, reviewed those patients' medical records and testified that the frequent lab testswere not warranted by the patients' histories or physical examinations. Except for patient G,petitioner ran a blood chemistry panel and a lipid panel—the only two tests that petitioner'sequipment could perform—on every sample she obtained. For the lab work she performed,petitioner billed the patients both for the panels and for the individual tests that were included inthe panels, a practice that Stephano and Jacqueline Thelian, a certified professional coder,testified was inappropriate and constituted billing for tests not performed. Petitioner also billedeach of the seven patients for blood draws via arterial punctures which, according to Petranker,were not justified by the patients' medical records, are rarely performed in typical office practiceand are billed at a more expensive rate than vena punctures.
Petitioner also listed diagnoses on the patients' health insurance claim forms—such asvolume depletion, chronic pancreatitis, hepatitis and diabetes—which had an insufficientbasis in the patients' medical records, presumably to justify the bloodwork and the arterialpunctures. In addition, petitioner routinely billed patient A and patients C through F for suppliesthat she did not use or that were inappropriate for the procedures performed and billed patients Aand B for a more comprehensive, and more expensive, exam than the patients' medical recordsindicated that she had provided to them. There is also evidence that petitioner frequentlyperformed procedures on patients C through G—such as injections, ultrasounds andlaboratory testing—for diagnoses that were unsubstantiated by the patients' medicalrecords. There is, therefore, substantial evidence to support the Committee's determinationsustaining the charges of fraudulent practice and excessive tests and treatment (see Matter ofPatin v State Bd. for Professional Med. Conduct, 77 AD3d at 1212-1215; Matter ofSteckmeyer v State Bd. for Professional Med. Conduct, 295 AD2d 815, 817-818 [2002];Matter of Larkins v DeBuono, 257 AD2d 714, 715-716 [1999]). As for petitioner'sexplanations of her billing practices, the Committee found that she was "intentionally deceitful"and wholly lacking in credibility, and we can find no reason to disturb that determination (see Matter of Shapiro v AdministrativeReview Bd. of the State Bd. for Professional Med. Conduct, 71 AD3d 1241, 1243[2010]; Matter of Smith v New YorkState Dept. of Health, 66 AD3d 1144, 1148 [2009]).[*5]
Substantial evidence also supports the Committee'sfinding of failure to maintain records for each of the seven patients. A physician commitsprofessional misconduct when he or she fails to "maintain a record for each patient whichaccurately reflects the evaluation and treatment of the patient" (Education Law § 6530[32]; see 8 NYCRR 29.2 [a] [3]), and a medical record is inadequate when it "fails toconvey objectively meaningful medical information concerning the patient treated to otherphysicians" (Matter of Mucciolo v Fernandez, 195 AD2d 623, 625 [1993], lvdenied 82 NY2d 661 [1993]; accordMatter of Maglione v New York State Dept. of Health, 9 AD3d 522, 525 [2004]). Here,the evidence established that petitioner disposed of medical records after a period of seven yearseven if she was still treating the patient, and she admitted that she did not keep the old recordsbecause she did not think that they were relevant to her present treatment. There is experttestimony, however, establishing that a physician should retain all of a patient's records while thepatient remains in his or her care, so that the physician and other physicians can trace theevolution of the patient's treatment. This evidence supports the Committee's finding thatpetitioner's failure to maintain complete files pertaining to her treatment of patients C through Gconstituted professional misconduct pursuant to Education Law § 6530 (32). Also,Petranker testified in great detail as to the deficiencies in the medical records of patients Athrough G. He testified that the records did not indicate that petitioner took a thorough andappropriate medical history from the patients, the records failed to clearly explain the diagnosesand treatments that petitioner provided to the patients—which often had no support in themedical record—and they failed to indicate petitioner's follow-up as to these treatmentsand diagnoses, where applicable. This testimony provides a substantial basis to sustain thespecifications alleging that petitioner failed to maintain adequate medical records as to each ofthe seven patients (see Matter of Diaz vState Bd. for Professional Med. Conduct, 68 AD3d 1565, 1568 [2009]; Matter ofVan Gaasbeek v Chassin, 198 AD2d 572, 575-576 [1993], lv denied 82 NY2d 665[1994]). To the extent that petitioner's medical expert provided testimony to the contrary, theCommittee rejected it and, again, we will defer to the Committee's credibility determination(see Matter of Patin v State Bd. for Professional Med. Conduct, 77 AD3d at 1214;Matter of Tsirelman v Daines, 61 AD3d at 1129).
We also find that petitioner's destruction of her current patients' old medical records and herfailure to maintain accurate medical records, as well as her egregious behavior in subjecting herpatients to excessive testing for her own monetary gain and in contravention of the minimumstandard of care of a reasonably prudent physician, provide substantial evidence to support theCommittee's decision to sustain the charges of negligence on more than one occasion and grossnegligence (see Education Law § 6530 [3], [4]; Matter of Youssef v State Bd. for Professional Med. Conduct, 6 AD3d824, 825-826 [2004]; Matter of Corines v State Bd. for Professional Med. Conduct,267 AD2d 796, 798-799 [1999], lv denied 95 NY2d 756 [2000]; Matter of Larkins vDeBuono, 257 AD2d at 715-716).
There is, however, insufficient evidence supporting the factual allegations in the followingparagraphs, and we will annul them: (1) paragraphs A.10, C.6.b, D.6.b., E.6.b and F.6.b, to theextent that they alleged that petitioner falsely billed the insurance companies of patient A andpatients C through F for her use of individual needles; (2) paragraphs C.11, D.11, E.11, F.11 andG.11, alleging that petitioner falsely billed the insurance companies of patients C through G forhigh-level comprehensive office visits; (3) paragraphs G.4, H.1, H.3 and H.4, to the extent thatthey alleged that petitioner performed in-house laboratory testing on patient G's blood; (4)paragraph G.6, alleging that petitioner falsely billed patient G's insurance company for supplies;and (5) paragraph H.4, alleging that petitioner falsely billed the patients' insurance companies forlaboratory work performed in another physician's office. These allegations formed [*6]a partial basis for specifications 1, 3, 4, 5, 6, 7, 8, 11, 12 and 18.Nevertheless, their annulment does not require reconsideration of the penalty imposed as each ofthe remaining allegations in those specifications are supported by substantial evidence (seeMatter of Tsirelman v Daines, 61 AD3d at 1129-1131; Matter of Okereke v State of NewYork, 129 AD2d 373, 377 [1987], lv denied 70 NY2d 611 [1987]). Given theextensive pattern of misconduct perpetuated by petitioner, which included pervasive billing fraudfrom which petitioner presumably profited, we find that the penalty imposed is not sodisproportionate to the offenses that it is shocking to one's sense of fairness (see Matter ofSteckmeyer v State Bd. for Professional Med. Conduct, 295 AD2d at 817-818; Matter ofCorines v State Bd. for Professional Med. Conduct, 267 AD2d at 800; Matter of Larkinsv DeBuono, 257 AD2d at 716).
We have considered petitioner's remaining contentions and find them to be without merit.
Mercure, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that the determination ismodified, without costs, by annulling so much thereof as found petitioner guilty of paragraphsA.10, C.6.b, C.11, D.6.b., D.11, E.6.b, E.11, F.6.b, F.11, G.4, G.6, G.11, H.1, H.3 and H.4 of thefactual allegations; petition granted to that extent; and, as so modified, confirmed.
Footnote *: Petitioner treated patient B ononly one occasion.