Appeal from a judgment of the Supreme Court, Monroe County (Richard A. Dollinger, A.J.), rendered October 15, 2010.
The opinion of the court was delivered by: Fahey, J.
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Released on April 26, 2013
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND MARTOCHE, JJ.
The judgment convicted defendant, upon his plea of guilty, of offering a false instrument for filing in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Opinion by Fahey, J.: In appeal Nos. 1 through 3, defendants appeal from respective judgments convicting them of crimes related to Medicaid and Medicare fraud. In doing so, defendants raise the issues whether the Attorney General of the State of New York (hereafter, Attorney General) has authority under Executive Law § 63 (3) to prosecute defendants for crimes involving Medicare, and whether Executive Law § 63 (3) is preempted by 42 USC § 1396b (q) (3). For the reasons that follow, we agree with the People that Executive Law § 63 (3) empowers the Attorney General to prosecute crimes related to Medicare fraud in connection with an authorized investigation of Medicaid fraud. We further conclude that Executive Law § 63 (3) is not preempted by 42 USC § 1396b (q) (3), and we thus conclude that the judgment in each appeal should be affirmed. I Medicaid is a joint federal-state program established pursuant to what is astutely described as a scheme of "unparalleled complexity" (Roach v Morse, 440 F3d 53, 58 [internal quotation marks omitted]), embodied in title XIX of the Social Security Act (42 USC § 1396 et seq.) and implemented in this state by article 5, title 11 of the Social Services Law and 18 NYCRR subpart 360-4. Medicaid is a state-administered program, and the federal government reimburses the state for a percentage of costs incurred in the proper and efficient administration of a Medicaid plan (see 42 USC § 1396b [a]; see also Matter of Golf v New York State Dept. of Social Servs., 91 NY2d 656, 659). Medicare, in turn, is a federal healthcare program for the aged and disabled, and is administered by the Department of Health and Human Services (42 USC § 1395 et seq.).
This case had its genesis in an investigation conducted by the Attorney General into defendants' submissions of false billing claims to both the state Medicaid office and the federal Medicare office. Briefly, defendant Michael Miran (Michael) is a clinical psychologist, and defendant Esta Miran (Esta) is his wife. Defendant Michael Miran, Ph.D. Psychologist, P.C. (Corporation) is an entity that Michael and Esta co-founded, and through that body submitted false billing claims. The parties agree that the Corporation was a Medicare provider and, according to the People, Michael was an enrolled Medicaid provider.
Defendants' patients were so-called "dual eligibles," i.e., their indigent status entitled them to both Medicare and Medicaid coverage. Pursuant to an agreement between the state and federal governments, Medicare funded the majority of the medical costs for defendants' patients, and Medicaid paid the applicable copayment. Defendants' medical billing agent billed Medicare for relevant services rendered and, after receiving payment from Medicare, charged Medicaid for the unpaid amount using the Medicaid billing code closest to the relevant Medicare billing code.
That practice eventually attracted the attention of state authorities. On April 26, 2002, years before this investigation began, the Commissioner of Health (COH) requested that the Attorney General investigate and prosecute Medicaid fraud (hereafter, referral). That referral provided as follows: "Pursuant to Executive Law § 63 (3), I hereby request that you investigate and prosecute the alleged commission of any indictable offense or offenses arising out of any violation of the Public Health Law, the Social Services Law or any other applicable state law or any regulation promulgated thereunder relating to: (1) fraud in the administration of the Medicaid program; (2) the provision of medical assistance and the activities of providers of medical assistance under the state Medicaid plan; (3) the abuse or neglect of patients in health care facilities receiving payments under the Medicaid plan or the misappropriation of patients' private funds in such facilities; and (4) the operation, management or funding of health-related entities and facilities subject to oversight by this Department . . ."In ...