Levy v. Perales

Determination of respondent Department of Social Services of the State of New York dated December 21, 1992, directing petitioner to make restitution of $73,586.90, plus interest, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Walter Schackman, J.], entered July 13, 1993) is dismissed, without costs. Substantial evidence of Medicaid overpayments was provided by testimony at the administrative hearing establishing that petitioner ordered tests that were not medically necessary, and that he kept inadequate records (see, Matter of Huda v New York State Dept. of Social Servs., 191 AD2d 405). Petitioner failed to establish that tests were performed by the laboratory without his knowledge or authorization precisely because he was unable to demonstrate what tests he had directed the laboratory to perform due to his poor record keeping. Concur—Sullivan, J. P., Rosenberger, Ellerin, Ross and Williams, JJ.