Appeal from the order of the Department of Public Welfare, in case of Appeal of: Anthony Del Borrello, D.O., File No. 9-83-7.
Donald W. Lehrkinder, Sr., Lehrkinder & Gillingham, for petitioner.
Mary Frances Grabowski, Assistant Counsel, with her, Stanley Slipakoff, for respondent.
Judges MacPhail and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.
[ 96 Pa. Commw. Page 509]
Anthony Del Borrello, D.O. (Petitioner) appeals an order of the Department of Public Welfare (DPW) Office of Hearings and Appeals which adopted the recommendations of the hearing officer suspending Petitioner from participating as a provider in the Medical Assistance Program (Medicaid) for a period of three years and ordering him to reimburse DPW in the amount of $15,034.09 because of poor record keeping. We affirm.
By letter dated February 22, 1983, DPW notified Petitioner that it was suspending him from participating in Medicaid for a period of three years and that it would seek restitution of $17,181.82 in Medicaid payments for services billed to Medicaid from September 1, 1980 through June 30, 1981. During this period, Petitioner had no formal medical provider agreement although such an agreement was executed on May 1, 1982.*fn1
At the hearings, DPW properly introduced into evidence eighty-six patient charts that had been reviewed by DPW. Counsel for DPW and Petitioner stipulated that DPW would offer expert testimony on a sample of the charts as representative of the whole. Following the
[ 96 Pa. Commw. Page 510]
hearing, the hearing officer sustained Petitioner's three year suspension but modified the amount of restitution to $15,034.09.*fn2
Our scope of review of orders of DPW is limited to determining whether the adjudication was in accordance with the law, whether constitutional rights were violated and whether the findings of fact are supported by substantial evidence. Brog Pharmacy v. Department of Public Welfare, 87 Pa. Commonwealth Ct. 181, 487 A.2d 49 (1985). Moreover, we may not disturb an agency's exercise of its discretion absent fraud, bad faith or a blatant abuse of discretion. Wengrzyn v. Cohen, 92 Pa. Commonwealth Ct. 154, 498 A.2d 61 (1985).
We note initially that Medicaid is a federally-funded program, established by Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396i. Participating states are to ensure that physicians keep records necessary to fully disclose the extent of services rendered and to make such records available to state and federal governments. 42 U.S.C. § 1396(a)(27). Furthermore, these states are required to adopt procedures to safeguard against fraud and abuse. 42 C.F.R. §§ 447.45(f)(2), 456.23 (1985). In accordance with federal guidelines, DPW requires medical providers ...