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IRWIN L. EISENBERG v. COMMONWEALTH PENNSYLVANIA (12/11/84)

decided: December 11, 1984.

IRWIN L. EISENBERG, D.O., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in case of Appeal of: Irwin L. Eisenberger, D.O., Docket Number 9-80-10.

COUNSEL

Philip P. Blackman, with him, Gilbert B. Abramson, Freedman & Blackman, P.C., for petitioner.

Bruce G. Baron, Assistant Counsel, for respondent.

Judges MacPhail and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 86 Pa. Commw. Page 359]

Dr. Eisenberg (Appellant) appeals to this Court from an order of the Department of Public Welfare

[ 86 Pa. Commw. Page 360]

(DPW) dated June 4, 1984 which: 1) suspended Appellant from participation as a provider in the State Medical Assistance Program (Medicaid) for a period of three years effective October 30, 1980 because of poor record keeping and improper billing and 2) suspended Appellant as a provider for five years from February 19, 1982 because he was convicted of a criminal offense.

Most of the problem in this case results from procedures which this Court is frank to admit are very confusing.

From our review of the record, it appears that a "charge letter" was sent to Appellant on September 30, 1980 which notified him that he was being suspended for three years because of poor record keeping and improper billing. Appellant filed a timely appeal with DPW pursuant to which a fair hearing was scheduled and held. After the record was closed and briefs were filed, DPW was advised that Appellant had entered a plea in the United States District Court for the Eastern District on mail fraud charges relating to his Medicare and Medicaid practice of medicine. DPW then filed motions with the hearing examiner to reopen the record and for summary judgment alleging that since termination of provider services is mandated when the provider has been convicted of a crime relating to the practice of his profession, there was nothing for the examiner to decide concerning the underlying circumstances of the crime. Appellant filed an objection to the motion to reopen and filed an answer to the motion for summary judgment. Without further hearing or argument, the examiner concluded that he could not grant the motion for summary judgment because there was no procedure which would authorize him to do so, but he would consider that motion as an amendment to the original charge letter.

[ 86 Pa. Commw. Page 361]

He thereupon granted the motion to reopen and made the following recommendation to the Secretary of DPW (Secretary):

It is the Recommendation of the Hearing Examiner that the Department's action in suspending appellant from participation in the State Medical Assistance Program for a period of five years from the date of his conviction in Federal Court be ...


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