IN RE: Vladimir G. Andries (2014)

Argued—March 14, 2014

DECISION & ORDER

ORDERED that on the Court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] );  and it is further,

ORDERED that the order is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the respondent.

Between November 2002 and December 2003, Vladimir G. Andries (hereinafter the petitioner), a physician licensed by the State of New York, was involved in an internet scheme, wherein he dispensed prescription drugs based on buyers' answers to online questionnaires and without medically evaluating them.   In August 2006, the petitioner was indicted under the federal felony charge of conspiracy to dispense controlled substances via the internet (21 USC § 841 [h];  18 USC § 371).   In 2008, the petitioner pleaded guilty to a single count of distribution of misbranded prescription drugs (21 USC §§ 331[a];  333[a][1];  353[b][1] ), in full satisfaction of the indictment, and was sentenced, inter alia, to a period of three years of probation, but was permitted to continue his medical practice.

In reviewing a determination such as that made by the OMIG here, judicial inquiry is limited to whether the determination was arbitrary and capricious, or without a rational basis in the record and a reasonable basis in law (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231;  Matter of Senior Care Servs., Inc. v New York State Dept. of Health, 46 AD3d 962).

Contrary to the petitioner's contention, the determination of the OMIG was not arbitrary and capricious.   The OMIG's determination was rationally based on 18 NYCRR 515.7(c), a regulation that authorizes the OMIG to exclude from participation in the Medicaid program a physician who has been convicted of a crime “which relates to or results from ․ the furnishing of or billing for medical care, services or supplies ․ or the participation in the performance of management or administrative services relating to furnishing medical care, services or supplies” (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d at 231;  Matter of Robinson Oil Corp. v. County of Westchester, 236 A.D.2d 542, 543).   Furthermore, and contrary to the petitioner's contention, New York State law does not prohibit the OMIG from sanctioning the petitioner even where, as here, the New York State Board of Professional Medical Conduct has declined to sanction him (see 18 NYCRR parts 504, 515;  Matter of Koch v. Sheehan, 21 NY3d 697;  see generally Matter of Medicon Diagnostic Labs. v Perales, 74 N.Y.2d 539, 545).

The Supreme Court properly granted the petition to the extent noted, so as to include provisions regarding the petitioner's reinstatement in the Medicaid program.   The OMIG did not initially provide for the length of time that the petitioner would be excluded from participation in the Medicaid program and, thus, violated the regulation providing that the OMIG's notice of exclusion must state the earliest date on which a request for reinstatement may be made (see 18 NYCRR 515.6[b][2][iv] ).   The OMIG later conceded that, pursuant to its regulations, it had the authority to exclude petitioner from the program only for a “reasonable time” (18 NYCRR 515.3[a][1] ), and stated in a writing that the petitioner could immediately apply for reinstatement in the program.

The penalty of exclusion from the Medicaid program, as amended by the Supreme Court to conform with the applicable regulations, cannot be said to be so “disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness” (Matter of Pell v Board of Educ. of Union Free School Dist, No 1. of Towns of Scarsdale to Mamaroneck, Westchester County, 34 N.Y.2d at 233 [internal quotation marks omitted];  Schaubman v. Blum, 49 N.Y.2d 375), thus constituting an abuse of discretion as a matter of law (see Matter of Kreisler v. New York City Tr. Auth., 2 NY3d 775, 776).

The petitioner's remaining contentions are without merit.

MASTRO, J.P., LOTT, SGROI and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court