Matter of Vivian Gina Giovanna Mihailescu, M.D. v James G. Sheenan, New York State Medicaid Inspector General, and Keith Servis, Director of New York State Office of Professional Conduct          

In this Article 78 proceeding, a medical doctor seeks to set aside a determination by the State Medicaid Inspector General denying her application to be reinstated as a provider in the Medicaid program. The Petitioner is board-certified in psychiatry and neurology, licensed to practice in New York and has been employed by hospitals in the Greater New York area between 1990 and 2003. At the beginning of 2004, one of the Petitioner’s patients filed a complaint against her with the State Department of Health, which then referred the complaint to the State Office of Professional Conduct (OPMC) for investigation and possible disciplinary proceedings by the Board of Professional Medical Conduct (the Board). Petitioner then resigned from her position at Metropolitan Hospital and worked for the next two and a half years at St. Joseph’s Medical Center while the OPMC continued to investigate her case. 

           

In December 2006, there was a Consent Agreement executed by Petitioner, OPMC, and the Bureau of Professional Medical Conduct. Under this agreement Petitioner waived her right to contest OPMC’s formal charges, all parties agreed to a 12-months suspension of Petitioner’s medical license, and that at the end of the 12-month period reactivation of her license would be dependant upon her meeting specified conditions. 

After meeting all conditions of the agreement, Petitioner was approved for Medicare reinstatement, but she was denied reinstatement in the Medicaid program by the Medicaid IG. Petitioner’s continuing exclusion from the roster of Medicaid providers effectively bars any governmentally licensed or operated facility from hiring her. The Medicaid IG argues that his authority to exclude physicians from enrollment as Medicaid providers includes power to determine independently which providers would pose a threat to the health and safety of Medicaid patients. The petitioner maintains that the IG’s function does not include independently assessing a provider as a professional. 

OPMC and BPCM are responsible for protecting both Medicaid and non-Medicaid patients. Therefore it is unlikely that legislature intended for the Medical IG to second guess the department by also investigating or evaluating the Petitioner. After a 12-month period it was determined by the department, that the Petitioner could safely be returned to hospital work, therefore the IG’s refusal to reinstate Petitioner is considered arbitrary and capricious and is granted relief through this Article 78. 

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