Appeal from an order of the United States District Court for the Eastern District of New York (Altimari, Judge dismissing plaintiff's civil rights complaint pursuant to Fed. R. Civ. P. 12(b).
Kaufman, Oakes and Winter, Circuit Judges.
Dr. Elias Rand appeals from Judge Altimari's order dismissing his complaint which alleged a violation of 42 U.S.C. § 1983. Judge Altimari held that the denial of Dr. Rand's claims for Medicaid reimbursement accorded with due process and that his complaint against Cesar Perales was barred by the Eleventh Amendment. We affirm.
At the relevant times, Dr. Rand was a licensed physician participating in the New York State Medical Program. Defendant Perales is the Chief Executive Officer of the New York State Department of Social Services ("State DSS"), the agency charged with the overall administration of that program. Defendant Joseph D'Elia is the Commissioner of the Nassau County Department of Social Services ("Nassau DSS"), which processed Medicaid reimbursement claims prior to November, 1979. At issue in this lawsuit are some 839 Medicaid claims totalling $57,318.38 submitted to Nassau DSS by Dr. Rand between 1973 and 1979 but never paid.
During 1977 and 1978, Nassau DSS undertook an audit of various Medicaid reimbursement claims submitted by Dr. Rand. In the course of this audit, Nassau DSS stopped paying at least some of those reimbursement claims. In November, 1977, Dr. Rand brought an Article 78 proceeding in New York State Supreme Court, seeking a court order requiring Nassau DSS to reimburse him for $5,507.00 in Medicaid services which he had allegedly provided in 1974. In 1978, the Article 78 action was withdrawn by stipulation subject to restoration upon ten days' written notice by Dr. Rand's attorney. This action has never been restored to the calendar.
On May 23, 1978, Nassau DSS notified Dr. Rand by certified mail that as a result of discrepancies discovered in the audit, he should attend a "provider discussion" held pursuant to then 18 N.Y.C.R.R. § 515.2.*fn1 This meeting took place on July 5, 1978 and concerned Dr. Rand's "inappropriate billings." The parties disagree sharply about what was said at the meeting. Nassau DSS claims that Dr. Rand admitted the submission of reimbursement claims for patients he had not treated and explained his failure to produce certain patient records at the meeting on the grounds that he had never treated and explained his failure to produce certain patient records at the meeting on the ground that he had never treated the patients. Dr. Rand categorically denies that he made such statements. It is agreed, however, that Dr. Rand refused to answer certain questions on the advice of counsel because of a pending criminal investigation against him. In addition, Dr. Rand does not contest Nassau DSS's claim that he brought no records to the discussion, despite a request that he do so.
On July 12, 1978, one week after the provider discussion, Nassau DSS sent Dr. Rand a disqualification notice by certified mail. This notice informed Dr. Rand that his Medicaid practices were inconsistent "with the Medical Assistance Program's policies, standards and regulations." The letter indicated that Dr. Rand had committed the following violations:
1. Billing for services not ordered by physicians;
2. Overbilling for procedures that could be combined under one fee;
3. Billing for dollar amounts in excess of established Medicaid amounts for specified procedures;
4. Billing for medically non-indicated ...