Opinion
Argued October 8, 1979
Decided November 20, 1979
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department.
Herbert Rubin and Howard L. Wexler for appellant.
Robert Abrams, Attorney-General (Maurice K. Peaslee and Shirley Adelson Siegel of counsel), for La Verne E. Campbell, respondent.
Thaddeus J. Szymanski, County Attorney (Robert J. Pierce of counsel), for Erie County Department of Health, respondent.
MEMORANDUM.
The judgment of the Appellate Division should be modified, with costs to respondents, by striking and deleting that part of the decretal paragraph which declared the proceeding to be moot and, except as so modified, affirmed.
Petitioner, a licensed podiatrist and a provider of services under the Medicaid program, was suspended from participation in that program for two years after a hearing held by respondent, the Regional Health Director for the Department of Health. Although petitioner's period of suspension is now over, podiatrists are once again eligible to participate as Medicaid providers due to an amendment of section 365-a of the Social Services Law (L 1979, ch 444, eff April 1, 1979). The determination of respondent, that petitioner exercised questionable medical judgment, engaged in improper and duplicative billing practices and failed to maintain professional standards in the documentation of patient treatment, should be subject to judicial review if only to safeguard against the possibility of unwarranted collateral effects that would redound to the detriment of petitioner as a result of those findings. Thus the proceeding is not moot.
Petitioner maintains that the proceedings taken against him were void on the ground that Item 35 of the New York State Medical Handbook, comprising regulations prepared by the Department of Health applicable to the Medicaid program, had not been properly filed with the Secretary of State (NY Const, art IV, § 8; see People v Cull, 10 N.Y.2d 123). However, even assuming that these proceedings were instituted pursuant to Item 35, the failure to file did not divest respondents of their inherent power to police the quality and value of services rendered by physicians participating in the Medicaid program and to take remedial measures against those whose services are found to be inadequate (see Lang v Berger, 427 F. Supp. 204, 213-214, n 37).
We have examined petitioner's remaining contentions and conclude they are without merit.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Judgment modified, with costs to respondents, in accordance with the memorandum herein and, as so modified, affirmed.