In the Matter of Harry Josifidis v. Daines

• Decision Date: 10 November 2011
• Citation: 89 A.D.3d 1257,2011 N.Y. Slip Op. 07891,932 N.Y.S.2d 258
• Parties: In the Matter of Harry JOSIFIDIS, Petitioner,v.Richard F. DAINES, as Commissioner of Health, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 1257

932 N.Y.S.2d 258

2011 N.Y. Slip Op. 07891

In the Matter of Harry JOSIFIDIS, Petitioner,

v.Richard F. DAINES, as Commissioner of Health, et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 10, 2011.

Nathan L. Dembin & Associates, New York City (Nathan L. Dembin of counsel), for petitioner.Eric T. Schneiderman, Attorney General, Albany (Seth J. Farber of counsel), for respondents.Before: SPAIN, J.P., ROSE, LAHTINEN, GARRY and EGAN JR., JJ.GARRY, J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230–c[5] ) to review a determination of the Hearing Committee of respondent State Board for Professional Medical Conduct which, among other things, revoked petitioner's license to practice medicine in New York.

Petitioner, a physician licensed to practice medicine in New York, was excluded by certain health insurers from being reimbursed as an in-network provider for treatment rendered to their insureds as the 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 to the insurers for petitioner's treatment of in-network patients. In February 2010, the Bureau of Professional Medical Conduct charged petitioner with 15 specifications of professional misconduct in violation of various provisions of Education Law § 6530. Petitioner and the other physician testified at a hearing conducted before a Hearing Committee of respondent State Board for Professional Medical Conduct and an Administrative Law Judge. The Committee entered a determination and order sustaining two of the specifications of professional 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 78 proceeding in this Court pursuant to Public Health Law § 230–c(5), seeking annulment of the determination 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 fraudulent practice of medicine ( see Education Law § 6530[2] ).¹ A determination of fraudulent practice must be supported by “ ‘proof of either an intentional misrepresentation or concealment of a known fact, [and] the intent or knowledge element may be inferred from the surrounding circumstances' ” ( Matter of Ross v. State Bd. for Professional Med. Conduct, 45 A.D.3d 927, 929, 845 N.Y.S.2d 162 [2007], lv. denied 10 N.Y.3d 701, 853 N.Y.S.2d 542, 883 N.E.2d 369 [2008], quoting Matter of Steckmeyer v. State Bd. for Professional Med. Conduct, 295 A.D.2d 815, 817–818, 744 N.Y.S.2d 82 [2002] ). The Committee determined that petitioner “knowingly and with intent to mislead insurance companies caused bills ... to be submitted ... falsely under another physician's name as the provider when the services were rendered by [petitioner] who was ineligible to bill those insurance companies.” Our review is limited to determining whether the decision was supported by substantial evidence ( see Matter of Patin v. State Bd. for Professional Med. Conduct, 77 A.D.3d 1211, 1212, 911 N.Y.S.2d 184 [2010]; Matter of D'Angelo v. State Bd. for Professional Med. Conduct, 66 A.D.3d 1154, 1155, 887 N.Y.S.2d 290 [2009] ), and we find that it was.

The other physician testified that as a temporary condition of petitioner's return to practice after the previous disciplinary determination, he had provided “in-house supervision” to petitioner for certain procedures. When the supervisory period ended in approximately 2002, petitioner asked the other physician to continue to work with him as the provider of record for patients in the insurance networks from which petitioner had been excluded, so that petitioner could continue to treat them. The other physician agreed, and drafted an agreement under which he would “take over the global management of those 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 affected patients 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 the other physician. The other physician was to compensate petitioner by paying him approximately half of the amounts collected from insurers.

In furtherance of the agreement, the other physician testified that he traveled to petitioner's office approximately two days a week to meet with petitioner's in-network patients and provide certain services. Petitioner's employees prepared bills under the other physician's name for his services, as well as for services that petitioner provided to the in-network patients. After the other physician reviewed the bills and requested any necessary adjustments, petitioner's employees submitted them to the insurers. 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.

The other physician testified that the arrangement functioned fairly smoothly for the first year, but thereafter, the number of patients that the other physician was overseeing 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 advise the patients of his affiliation with the other physician, that it took two years before petitioner drafted a satisfactory introductory letter for the patients, and that even after the letter was drafted, he frequently failed 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 his existence, but were billed for services in his name. In the other physician's estimation, he saw only approximately 40% of the patients who were billed in his name during the life of the agreement. In evaluating the credibility of this account, the Committee found that the other physician was “not fully persuasive” 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 petitioner made intentional misrepresentations to insurers in order to obtain reimbursement. We find no basis in the record to disturb this credibility assessment, which was within the Committee's “exclusive province” ( Matter of Chamberlin v. New York State Bd. for Professional Med. Conduct, 34 A.D.3d 1097, 1098, 825 N.Y.S.2d 172 [2006] [internal quotation marks and citations omitted]; accord Matter of Patin v. State Bd. for Professional Med. Conduct, 77 A.D.3d at 1212, 911 N.Y.S.2d 184).

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 the other physician was improper. However, the Committee rejected the explanations he offered for his conduct, 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...