Fast Help Ambulette, Inc. v. N.Y. State Dep't of Health

198 A.D.3d 756

156 N.Y.S.3d 267

In the Matter of FAST HELP AMBULETTE, INC., petitioner,

v.NEW YORK STATE DEPARTMENT OF HEALTH, et al., respondents.

2018–05110

Index No. 518385/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 17, 2021

October 13, 2021

Sinayskaya Yuniver, P.C., Brooklyn, N.Y. (Steven R. Yuniver of counsel), for petitioner.

Letitia James, Attorney General, New York, N.Y. (Anisha S. Dasgupta and Philip V. Tisne of counsel), for respondents.

WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of a designee of the Commissioner of the New York State Department of Health dated May 25, 2017. The determination, after a hearing, upheld the determination of the New York State Office of the Medicaid Inspector General to recover Medicaid overpayments in the amount of $1,102,553 from the petitioner.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

The petitioner is a transportation vendor enrolled as a provider in the New York State Medical Assistance Program (hereinafter Medicaid). In June 2011, the respondent State of New York Office of the Medicaid Inspector General (hereinafter OMIG), an independent office within the respondent New York State Department of Health (hereinafter DOH) responsible for the investigation, detection, and prevention of Medicaid fraud, waste, and abuse, in connection with the respondent Human Resources Administration (hereinafter HRA), commenced an audit of 150 random samples of Medicaid claims submitted by the petitioner between January 1, 2008, through December 31, 2010. OMIG issued its draft audit report in connection with the petitioner's audit by letter dated November 12, 2013 (hereinafter the DAR). The DAR stated that the petitioner's failure to comply with the DOH's regulations resulted in a total sample overpayment of $3,355.20. The DAR further stated that the statistical sampling methodology employed allowed for extrapolation of the sample findings to the universe of cases and the adjusted mean per unit point estimate of the amount overpaid was $1,102,553. In its detailed findings, the DAR stated that in 36 instances, the claims contained inaccurate vehicle plate numbers, and in 11 instances, the claims contained inaccurate driver license numbers. The DAR also stated that in 12 instances, the petitioner did not ensure that its driver complied with Department of Motor Vehicles (hereinafter DMV) certification requirements under Vehicle and Traffic Law article 19–a.

The petitioner's attorney responded to the DAR by letter dated January 31, 2014, and raised certain objections. OMIG issued its final audit report (hereinafter FAR) by letter dated June 12, 2014, which, inter alia, determined that $1,102,553 in Medicaid overpayments should be recovered from the petitioner. The petitioner's attorney responded to the FAR by letter dated June 14, 2017, and requested a hearing.

The hearing commenced on September 29, 2016, before the respondent Denise Lepicier, an administrative law judge (hereinafter the ALJ). During the hearing, Tricia Smith, who was employed by OMIG as a management specialist–1, and Ping Tran, who was employed by HRA as a management auditor, testified on behalf of OMIG, and OMIG entered the certification of Karl W. Heiner into evidence. Eric Bokman, who was the petitioner's manager, testified on behalf of the petitioner.

In a decision after hearing dated May 25, 2017, the ALJ upheld OMIG's determination to recover Medicaid overpayments in the amount of $1,102,553 from the petitioner.

On September 22, 2017, the petitioner commenced the instant proceeding pursuant to CPLR article 78 to review the ALJ's determination, contending, inter alia, that the respondents had violated its due process rights and that the ALJ's determination was not supported by substantial evidence. By order dated April 26, 2018, the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7803(4) and 7804(g).

Contrary to the petitioner's contentions, it was provided the appropriate due process in this matter (see generally Matter of Sekul v. City of Poughkeepsie, 195 A.D.3d 622, 149 N.Y.S.3d 508 ; Matter of Jensen v. New York State Dept. of Motor Vehs., 176 A.D.3d 707, 708, 112 N.Y.S.3d 207 ). OMIG's communications, including the DAR, provided the petitioner with sufficient notice of, inter alia, the statistical sampling method OMIG used to extrapolate the sample findings to the universe of cases during the audit period (see generally Matter of Reliance Ambulette, Inc. v. Rosen, 181 A.D.3d 533, 534, 121 N.Y.S.3d 258 ). In response to the DAR, the petitioner did not raise any contentions regarding the method of extrapolation. Accordingly, the petitioner did not preserve its right to challenge the extrapolation methodology at the hearing (see 18 NYCRR 517.5 [c]). In any event, "[a]n extrapolation of findings based on an audit using a certified valid statistical sampling method is presumed to be an accurate determination of the total overpayments made, in the absence of expert testimony or other evidence submitted by the provider at a hearing" ( West Midtown Mgt. Group, Inc. v. State of N.Y., Dept. of Health, Off. of the Medicaid Inspector Gen., 31 N.Y.3d 533, 536, 81 N.Y.S.3d 343, 106 N.E.3d 726 [internal quotation marks omitted]; see 18 NYCRR 519.18 [g]; Matter of Mercy Hosp. of Watertown v. New York State Dept. of Social Servs., 79 N.Y.2d 197, 201, 581 N.Y.S.2d 628, 590 N.E.2d 213 ). Here, Heiner certified that the extrapolation methodology used by OMIG in this audit was a statistically valid methodology. At the hearing, the petitioner did not submit any expert testimony to challenge the extrapolation by OMIG, nor did the petitioner submit an actual accounting of all claims paid in rebuttal to OMIG's evidence (see 18 NYCRR 519.18 [g]). Accordingly, the petitioner did not offer any competent evidence to challenge OMIG's evidence (see id.; cf. Matter of Bulmahn v. New York State Off. of Medicaid Inspector Gen., 106 A.D.3d 1504, 1506, 964 N.Y.S.2d 853 ).

In a proceeding pursuant to CPLR article 78, judicial review of factual findings made by an administrative agency following an evidentiary hearing is limited to consideration of whether the findings were supported by substantial evidence (see id. § 7803[4] ; Matter of Haug v. State Univ. of N.Y. at Potsdam, 32 N.Y.3d 1044, 1045, 87 N.Y.S.3d 146, 112 N.E.3d 323 ; Matter of Sekul v. City of Poughkeepsie, 195 A.D.3d 622,...