Judges: Yesawich
Filed Date: 7/21/1994
Status: Precedential
Modified Date: 10/31/2024
Appeal from an order of the Supreme Court (Travers, J.), entered May 12, 1993 in Albany County, which, inter alia, denied plaintiff’s motion to dismiss the fifth and sixth affirmative defenses in defendant’s answer.
Defendant, a physician, was a participating provider in New York’s Medicaid program during 1988 and most of 1989. After
Plaintiff thereafter brought this action to recover the remaining $284,573 allegedly owed by defendant
Both defenses should be dismissed. As a fifth affirmative defense, defendant claims that DSS’ use of a statistical sampling method, whereby it examined 200 cases and extrapolated the results to determine the total amount improperly paid out under the program for services billed or ordered by defendant during the audit period, is invalid as a matter of law in that it is arbitrary, capricious, illegal, and violates defendant’s constitutional right to due process and equal protection. To the extent that this defense is intended as a challenge to the use of statistical sampling in general, or to its use in a situation where all of the provider’s records could have been reviewed, it is, as noted by Supreme Court, merit-less (see, Matter of Mercy Hosp. v New York State Dept. of Social Servs., 79 NY2d 197, 203-206; Matter of Clin Path v New York State Dept. of Social Servs., 193 AD2d 1034, 1035-1036). And, insofar as this defense is intended as a challenge to the particular calculations or formulae employed by DSS in this case, it represents an improper collateral attack upon the underlying administrative determination; to the extent defendant argues that the determination is invalid because he was not afforded a proper hearing, those issues are preserved by his second affirmative defense.
In his sixth affirmative defense, defendant contends that
Mikoll, J. P., Mercure, Crew III and Peters, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied that part of the motion seeking dismissal of the answer’s fifth and sixth affirmative defenses; motion granted to that extent and said affirmative defenses are dismissed, and, as so modified, affirmed.
Plaintiff recouped approximately $10,000 by withholding payments still due defendant under the program.