Opinion
December 24, 1998
Petitioner, a radiologist, was charged by respondent Bureau of Professional Medical Conduct (hereinafter the BPMC) with professional misconduct for violations of Education Law § 6530 (2), (20) and (21). The charges alleged that from January 1, 1988 through February 1, 1990 petitioner submitted false claims to the Medicaid program for reimbursement for ultrasound services. Prior to the BPMC's charges in May 1995, petitioner had pleaded guilty to one count of grand larceny in the second degree for defrauding the Medicaid system of over $50,000. Petitioner was later sentenced to 90 days' incarceration and ordered to pay restitution in the amount of $350,000. Supreme Court, however, stayed the execution of his sentence to allow him to continue working in order to make periodic restitution payments, provided he did not render Medicaid services.
In August 1997, an administrative fact-finding hearing was conducted before a Hearing Committee of the State Board for Professional Medical Conduct. The BPMC introduced a certified copy of the plea allocution, without objection, in which petitioner pleaded guilty to grand larceny in the second degree. For purposes of the hearing, the parties stipulated to the facts, including an admission that petitioner defrauded the Medicaid system. The Hearing Committee issued its decision in October 1997 and ordered an immediate revocation of petitioner's license to practice medicine in New York. Thereafter, petitioner commenced this CPLR article 78 proceeding to review the Hearing Committee's determination.
Petitioner does not challenge the Hearing Committee's determination to revoke his professional license, but argues that the penalty should have been suspended to enable him to pay the balance of restitution in connection with his criminal case. We disagree. An administrative penalty of license revocation may be set aside only if the punishment is so disproportionate to the offense "`as to be shocking to one's sense of fairness'" (Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233, quoting Matter of Stolz v. Board of Regents, 4 A.D.2d 361, 364; see, Matter of Chua v. Chassin, 215 A.D.2d 953, lv denied 86 N.Y.2d 708; Matter of Adler v. Bureau of Professional Med. Conduct, 211 A.D.2d 990). Here, in light of petitioner's admission that he fraudulently billed the Medicaid system, thereby violating the public trust, we decline to disturb the penalty rendered (see, Matter of Teruel v. DeBuono, 244 A.D.2d 710; Matter of Kabnick v. Chassin, 223 A.D.2d 935, affd 89 N.Y.2d 828; Matter of Sokol v. New York State Dept. of Health, 223 A.D.2d 809, appeal dismissed 87 N.Y.2d 1054; Matter of Hidalgo v. Sobol, 176 A.D.2d 984).
Petitioner's reliance upon Supreme Court's decision to adjourn imposition of petitioner's criminal sentence to permit him to continue making restitution payments from revenues received from his medical practice is misplaced. Although we recognize the utility of furthering restitution efforts, the Hearing Committee is responsible for disciplining petitioner for professional misconduct and is not compelled to implement Supreme Court's remedy (see, Matter of Hidalgo v. Sobol, supra). In light of these circumstances which involved petitioner's fraudulent conduct and the serious harm which resulted to the Medicaid system, we find that the Hearing Committee's imposition of immediate revocation did not exceed its discretion or violate lawful procedure in assigning greater importance to its penalty than restitution (cf., Matter of Teruel v. DeBuono, supra; cf., Matter of Gupta v. DeBuono, 229 A.D.2d 58; Matter of Glassman v. Commissioner of Dept. of Health of State of N.Y., 208 A.D.2d 1060, lv denied 85 N.Y.2d 801).
Cardona, P. J., Mercure, White and Spain, JJ., concur.
Adjudged that the determination is confirmed, without costs, and petition dismissed.