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PELINI v. BLUM

January 6, 1983

MARK PELINI, Plaintiff,
v.
BARBARA BLUM, individually, and as Commissioner of Social Services of the State of New York, Defendant



The opinion of the court was delivered by: SOFAER

MEMORANDUM AND ORDER [January 6, 1983]

 ABRAHAM D. SOFAER, D.J.:

 Plaintiff, a practicing physician, has moved for a preliminary injunction that would prevent New York's Commissioner of Social Services from withholding Medicaid reimbursements to plaintiff pending the final determination of this action. The underlying complaint seeks a declaration that 18 N.Y.C.R.R. §§ 515.7 and 515.3(f) are constitutionally invalid because they permit withholding of Medicaid payments due plaintiff without a prior hearing, an injunction against enforcement of the regulations, and the costs including attorneys' fees of pursuing the action. A hearing was held on December 21, 1982 at which the Court reserved judgment on the motion for a preliminary injunction. The motion is hereby denied.

 At some time prior to November 24, 1982 the Bureau of Medicaid Fraud & Abuse of the State Department of Social Services conducted an inspection of plaintiff's office and files. According to the uncontroverted representations of defense counsel at oral argument, the inspection team included nurses and was under the supervision of an accountant. The Department of Social Services' detailed official notice to plaintiff asserts that the team examined a statistically valid sample of 100 out of 3,327 cases for the period November 1, 1977 to December 31, 1979. Disallowances of $2,187.26 were made in the sample cases because of failures to produce patient charts (36 transactions), failures to document service (193 transactions), reductions for out-of-speciality billings (247 transactions), and improper use of procedure codes (7 transactions). The Department of Social Services then projected that sample disallowance to the universe of payments, resulting in a restitution order of $72,670.33, plus interest, or $78,847.32 as of November 24, 1982. See 18 N.Y.C.R.R. § 515.3(d) (1). The Department also concluded on the basis of the inspection, not limited to the time period for which files were examined, that the quality of care provided by plaintiff was so deficient as to warrant his permanent disqualification from participation in the State's medical assistance program. See 18 N.Y.C.R.R. § 515.3(b) (1) (i). The quality-of-care deficiencies found by the Bureau were:

 
1. There is a total absence of clinical detail in recording the chief complaint and present illness.
 
2. There is a uniform absence of documentation relative to past history, social history, family history and systems review.
 
3. Physical examinations are limited and incomplete. There is often a pattern of successive clinical visits without documentation of even a limited physical examination.
 
4. Laboratory data are infrequently requested.
 
5. EKG's are not interpreted.
 
6. There are frequent instances of patient visits exceeding the ordinary standards of medical practice.
 
7. Medications are listed in illegible form without dosage or frequency.
 
8. There are instances of injudicious and unjustifiable prescriptions for medications.

 In re Mark Pelini, M.D., Notification of Intent to Take Administrative Action, MMIS # 00151886 (Nov. 24, 1982) para. 2B.

 The Department's official notice informed plaintiff of his right to a hearing under 18 N.Y.C.R.R. § 515.8. The notice specifically pointed out that a timely request for hearing would stay both the restitution and permanent disqualification orders. But the Bureau also decided to take the ...


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