Appeal from the Order of the Department of Public Welfare, in the Appeal of: Eddie Clark, M.D., File No. 09-83-24.
James McGarrity, with him, Harry Aaron Rubin, for petitioner.
Bruce G. Baron, Assistant Counsel, for respondent.
Judges Doyle and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Doyle.
[ 115 Pa. Commw. Page 599]
This is an appeal by Eddie L. Clark, M.D., from an order of the Office of Hearings and Appeals (OHA), Department of Public Welfare (DPW), which adopted the recommendation of the hearing attorney and, thus, terminated Dr. Clark from direct and indirect participation in the Medical Assistance Program (MAP) for a period of five years.
The hearing attorney found that Dr. Clark had been a participating physician in MAP and that he practiced for thirty years in an economically deprived area of Philadelphia. DPW conducted a billing and recordkeeping audit of Dr. Clark's patient records for the period from December 3, 1981 to February 27, 1982. Further, an on-site visit was made by DPW personnel on August 17, 1982 for the purpose of microfilming randomly selected patient charts. Upon review, it was determined that the microfilmed records were illegible. Consequently, in November 1982, DPW requested the original records which were provided. DPW has charged that twenty-six of the forty records provided in November exhibited either additions, deletions or other changes when compared to the August 1982 microfilmed records. The hearing attorney found this charge to be true. DPW further charged that, with respect to seven patients, Dr. Clark billed for certain office visits and diagnostic services without adhering to particular standards of practice. The hearing attorney sustained the charge with respect to two patients. Next, DPW contended that in seven instances Dr. Clark violated DPW regulations pertaining to medical record keeping. The hearing attorney sustained two of those charges. Finally, DPW charged that Dr. Clark had improperly billed for an office visit concerning a DPW employee posing as a welfare recipient; allegedly, the visit never occurred. The hearing attorney made no findings on
[ 115 Pa. Commw. Page 600]
this charge. He concluded, however, that the first charge by itself justified the five-year termination of Dr. Clark's participation in MAP. The OHA adopted this recommendation and the instant appeal ensued.*fn1
On appeal Dr. Clark contends that he was denied due process in that he was foreclosed from challenging the severity of the sanction; that the hearing attorney erred in refusing to qualify one of his experts and in excluding the testimony on grounds of relevancy; and that the DPW acted in bad faith and abused its discretion
[ 115 Pa. Commw. Page 601]
in imposing this particular sanction upon him. We shall consider these issues in turn fully cognizant that our scope of review is limited to determining whether there has been a constitutional violation or an error of law and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. § 704.
Dr. Clark first asserts that he was denied an opportunity to submit evidence on the issue of an appropriate sanction.*fn2 The citations to the record, however, do not bear this out. While it is true that the hearing attorney stated that he could only make recommendations and could not impose or alter sanctions, he did let the good character evidence pertaining to Dr. Clark in. No other evidence on mitigation was offered. We have previously recognized that the hearing attorney's role in a provider case is only to make recommendations, see Northwestern Institute of Psychiatry v. Department of Public Welfare, 99 Pa. Commonwealth Ct. ...