Opinion
December 7, 1978
Proceeding pursuant to CPLR article 78 (instituted in this court pursuant to subdivision 4 of section 6510 Educ. of the Education Law) to annul a determination of the Commissioner of Education suspending petitioner's license to practice chiropractic for two years, with the last year of said suspension suspended, and placing petitioner on probation for a period of two years. On June 10, 1976 petitioner, a licensed chiropractor, pleaded guilty in a United States District Court to (1) filing fraudulent claims against the United States under the Medicare Act, and (2) conspiring to do so. As a result of this conviction, the Department of Education charged petitioner with committing a crime under Federal law and with unprofessional conduct committed by virtue of the acts underlying the Federal conviction. After a hearing, the Commissioner of Education found that the charges had been sustained, and he issued an order which suspended petitioner's license on each charge for two years, each suspension to run concurrently, staying the execution of the last year of the suspension and placing petitioner on probation for two years. Conviction of the crime of filing fraudulent claims under the Medicare Act and committing unprofessional conduct by virtue of the acts underlying the crime constitute "professional misconduct" under the Education Law (§ 6509, subd [5], par [b]; subd [9]), which subject a licensee to the penalties prescribed in section 6511, including suspension of a license. We reject petitioner's contention that under article 23-A of the Correction Law it is against public policy to suspend a chiropractor's license on the basis of a conviction having no connection with the practice of the profession. Article 23-A by its terms applies only to the "application" for a license by a person previously convicted of a crime (see Correction Law, § 751); it has no bearing on disciplinary proceedings against persons already licensed (cf. Matter of Glucksman, 57 A.D.2d 205, 208, mot for lv to app den 42 N.Y.2d 804). We find no indication that the Legislature intended to supersede the disciplinary provisions prescribed in the Education Law by enacting article 23-A (cf. Matter of Glucksman, supra, p 207), especially in view of the long-settled rule that unprofessional conduct need not be limited to acts directly connected to the treatment of patients (Matter of Pepe v. Board of Regents of Univ. of State of N.Y., 31 A.D.2d 582, mot for lv to app den 24 N.Y.2d 741; Matter of Erdman v. Board of Regents of Univ. of State of N.Y., 24 A.D.2d 698, mot for lv to app den 17 N.Y.2d 421; cf. Matter of Bott v. Board of Educ., 41 N.Y.2d 265, 268), and that filing false claims for payment has historically been grounds for discipline under the Education Law. (See, e.g., Matter of Wassermann v. Board of Regents of Univ. of State of N.Y., 11 N.Y.2d 173, cert den 371 U.S. 861, app dsmd 371 U.S. 23; Matter of Frank v. Board of Regents of Univ. of State of N Y, 24 A.D.2d 909.) Furthermore, petitioner's contention must be rejected in that he was also found guilty of unprofessional conduct by his admission of the acts underlying his Federal conviction (see Matter of Shkolnik v. Nyquist, 59 A.D.2d 954; Matter of Erdman v. Board of Regents of Univ. of State of N.Y., supra, p 698-699). Finally, we find that the penalty imposed is neither clearly disproportionate to the offense nor shocking to the conscience of the court (Kostika v. Cuomo, 41 N.Y.2d 673, 676; Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233; Matter of Kones v. Nyquist, 52 A.D.2d 1000, 1001). Determination confirmed, and petition dismissed, without costs. Greenblott, J.P., Kane, Main, Mikoll and Herlihy, JJ., concur.