| Matter of Josifidis v Daines |
| 2011 NY Slip Op 07891 [89 AD3d 1257] |
| November 10, 2011 |
| Appellate Division, Third Department |
| In the Matter of Harry Josifidis, Petitioner, v Richard F. Daines,as Commissioner of Health, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Seth J. Farber of counsel), forrespondents.
Garry, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public HealthLaw § 230-c [5]) to review a determination of the Hearing Committee of respondent StateBoard for Professional Medical Conduct which, among other things, revoked petitioner's license topractice medicine in New York.
Petitioner, a physician licensed to practice medicine in New York, was excluded by certain healthinsurers from being reimbursed as an in-network provider for treatment rendered to their insureds asthe result of a prior disciplinary action. He thereafter entered into an agreement with another physician(hereinafter the other physician) by which the other physician's name appeared on claims submitted tothe insurers for petitioner's treatment of in-network patients. In February 2010, the Bureau ofProfessional Medical Conduct charged petitioner with 15 specifications of professional misconduct inviolation of various provisions of Education Law § 6530. Petitioner and the other physiciantestified at a hearing conducted before a Hearing Committee of respondent State Board forProfessional Medical Conduct and an Administrative Law Judge. The Committee entered adetermination and order sustaining two of the [*2]specifications ofprofessional misconduct, revoked petitioner's license to practice medicine, and imposed a fine(see Public Health Law § 230-a [4], [7]). Petitioner commenced this CPLR article 78proceeding in this Court pursuant to Public Health Law § 230-c (5), seeking annulment of thedetermination and order, and this Court stayed its execution during the pendency of the proceeding.
Petitioner contends that the Committee incorrectly determined that he committed the fraudulentpractice of medicine (see Education Law § 6530 [2]).[FN1] A determination of fraudulent practice must be supported by " 'proof of either an intentionalmisrepresentation or concealment of a known fact, [and] the intent or knowledge element may beinferred from the surrounding circumstances' " (Matter of Ross v State Bd. for Professional Med. Conduct, 45 AD3d927, 929 [2007], lv denied 10 NY3d 701 [2008], quoting Matter of Steckmeyer vState Bd. for Professional Med. Conduct, 295 AD2d 815, 817-818 [2002]). The Committeedetermined that petitioner "knowingly and with intent to mislead insurance companies caused bills. . . to be submitted . . . falsely under another physician's name as theprovider when the services were rendered by [petitioner] who was ineligible to bill those insurancecompanies." Our review is limited to determining whether the decision was supported by substantialevidence (see Matter of Patin v State Bd. forProfessional Med. Conduct, 77 AD3d 1211, 1212 [2010]; Matter of D'Angelo v State Bd. for ProfessionalMed. Conduct, 66 AD3d 1154, 1155 [2009]), and we find that it was.
The other physician testified that as a temporary condition of petitioner's return to practice after theprevious disciplinary determination, he had provided "in-house supervision" to petitioner for certainprocedures. When the supervisory period ended in approximately 2002, petitioner asked the otherphysician to continue to work with him as the provider of record for patients in the insurance networksfrom which petitioner had been excluded, so that petitioner could continue to treat them. The otherphysician agreed, and drafted an agreement under which he would "take over the global management ofthose patients in [petitioner's] practice (current and future) who had fallen out of [petitioner's]providership ability and who wish to continue their care in this practice." The agreement provided,among other things, that petitioner would immediately introduce the other physician to the affectedpatients as the provider of record, that each patient would receive and sign an "introductory letter"describing the arrangement, that petitioner would treat these patients "only under [the other physician's]providership and under [his] hire," and that all services he provided to them were to be cleared by theother physician. The other physician was to compensate petitioner by paying him approximately half ofthe amounts collected from insurers.
In furtherance of the agreement, the other physician testified that he traveled to petitioner's officeapproximately two days a week to meet with petitioner's in-network patients and provide certainservices. Petitioner's employees prepared bills under the other physician's name for his services, as wellas for services that petitioner provided to the in-network patients. After the other physician reviewedthe bills and requested any necessary adjustments, petitioner's employees submitted them to theinsurers. The insurers paid the other physician, who provided petitioner with his share of the payments,ranging between $70,000 and $100,000 during each of the five years the agreement was in place.[*3]
The other physician testified that the arrangement functionedfairly smoothly for the first year, but thereafter, the number of patients that the other physician wasoverseeing began to grow "beyond control" so that he did not meet or have contact with all of them.Additionally, he testified that from the beginning of the arrangement, petitioner frequently failed to advisethe patients of his affiliation with the other physician, that it took two years before petitioner drafted asatisfactory introductory letter for the patients, and that even after the letter was drafted, he frequentlyfailed to provide it to patients or document that he had done so by placing a signed copy in their charts.The other physician stated that, as a result, a growing population of patients had no knowledge of hisexistence, but were billed for services in his name. In the other physician's estimation, he saw onlyapproximately 40% of the patients who were billed in his name during the life of the agreement. Inevaluating the credibility of this account, the Committee found that the other physician was "not fullypersuasive" because of his complicity in the arrangement, but nonetheless concluded that his testimony,when combined with other evidence in the record, was sufficiently credible to establish that petitionermade intentional misrepresentations to insurers in order to obtain reimbursement. We find no basis inthe record to disturb this credibility assessment, which was within the Committee's "exclusive province"(Matter of Chamberlin v New York StateBd. for Professional Med. Conduct, 34 AD3d 1097, 1098 [2006] [internal quotation marksand citations omitted]; accord Matter of Patin v State Bd. for Professional Med. Conduct, 77AD3d at 1212).
Petitioner asserts that he did not have the requisite intent to support a charge of fraudulent practice;during his testimony, he contended, among other things, that he did not believe his arrangement with theother physician was improper. However, the Committee rejected the explanations he offered for hisconduct, finding that he was "consistently evasive," that he distorted the truth, and that his testimony,taken as a whole, was "patently not credible." As before, we find no reason to disturb this assessment.Petitioner testified that he relied on the other physician's representation that their agreement was "lawfuland appropriate," but the Committee made a specific finding that this position was "not credible," notingthat petitioner, rather than the other physician, had originated the idea for the arrangement. Petitionerfurther contended that the other physician told him that he had advised the insurers of the arrangementand had obtained their approval, but the other physician denied that this had occurred, and no otherevidence in the record supports this claim. Further, even if petitioner believed that the agreementdrafted by the other physician was legitimate or that it had been accepted by the insurers, the testimonyreveals that he consistently failed to comply with it.
An inference of intent to deceive is a factual determination to be made by the Committee (seeMatter of Corines v State Bd. for Professional Med. Conduct, 267 AD2d 796, 800 [1999], lvdenied 95 NY2d 756 [2000]), and such an inference may properly be drawn when the Committeefinds that explanations for fraudulent misrepresentations are incredible (see Matter of Catsoulis v New York State Dept.of Health, 2 AD3d 920, 921 [2003]). Substantial evidence in the record shows that petitionerrepeatedly submitted bills in the other physician's name for services he had provided in order to receivepayment from insurers who had specifically excluded him from being reimbursed for such services, andthus fully supports the Committee's conclusion that he made intentional misrepresentations in order toobtain reimbursement (see Matter ofTsirelman v Daines, 61 AD3d 1128, 1130 [2009], lv denied 13 NY3d 709 [2009];Matter of Ostad v New York State Dept. ofHealth, 40 AD3d 1251, 1253 [2007]).
Petitioner further contends that he entered into the agreement to provide his patients with continuityof care rather than for profit, arguing that the reimbursements he received were [*4]barely sufficient to cover his overhead and expenses. However,fraudulent practice need not benefit a physician or injure a patient to constitute misconduct (see Matter of Youssef v State Bd. forProfessional Med. Conduct, 6 AD3d 824, 826 [2004]). Notably, the agreement explicitlyapplied not only to those patients that petitioner was already treating before he was excluded by theinsurers, but also to future patients, and the other physician testified that the number of patientsincreased during the life of the agreement. Finally, we reject petitioner's claim that he did not cause falsebills to be submitted because the other physician reviewed and approved them before they weresubmitted in his name; the testimony established that petitioner's employees prepared and submitted thebills, at petitioner's direction and with his knowledge. Accordingly, we find that the Committee properlyrejected petitioner's explanations and substantial evidence in the record supports its determination(see Matter of Tsirelman v Daines, 61 AD3d at 1129; Matter of Corines v State Bd. forProfessional Med. Conduct, 267 AD2d at 799-800).[FN2]
Turning to petitioner's contention that the penalty imposed is excessive, this will not be disturbedunless it is " 'so incommensurate with the offense as to shock one's sense of fairness' " (Matter of Zahl v Daines, 63 AD3d1314, 1316 [2009], quoting Matter ofBursztyn v Novello, 42 AD3d 596, 598 [2007]). Even when no patient is harmed and thephysician does not gain financially, revocation may be an appropriate penalty for insurance fraud, whichviolates the public trust (see Matter of Zharovv New York State Dept. of Health, 4 AD3d 580, 580 [2004]). Here, the Committee notedpetitioner's prior disciplinary history of "repeated egregious conduct warrant[ing] a severe sanction,"observed that in both disciplinary proceedings, petitioner attempted to shift blame onto anotherphysician rather than accepting responsibility for his own conduct, and found that nothing short ofrevocation would protect the public from the risk of recurrence. Given petitioner's history, lack ofcontrition, and efforts to evade the consequences of his prior discipline, we do not find the penaltyshockingly disproportionate (see Matter of Tsirelman v Daines, 61 AD3d at 1131; Matterof Ostad v New York State Dept. of Health, 40 AD3d at 1253; Matter of Zharov v NewYork State Dept. of Health, 40 AD3d at 581).
Spain, J.P., Rose, Lahtinen and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote 1: Petitioner does not contest theHearing Committee's conclusion that he failed to maintain records for one patient.
Footnote 2: As petitioner notes, the Committee'sdetermination and order contains certain inconsistencies and factual misstatements. For example, theCommittee misstated petitioner's area of specialty, and it sustained the specification of failure tomaintain records for only one patient after finding that he had failed to so for four patients. However,these relatively minor errors had no effect on the Committee's conclusions as to petitioner's primary actof misconduct—that is, circumventing his exclusion from insurers' networks by using anotherphysician's name—and thus, no modification of the findings or penalty is warranted (seeMatter of Peress v Administrative Review Bd. for Professional Med. Conduct, 294 AD2d 753,754-755 [2002]).