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In re Kaplan

Decided: March 19, 1981.

IN THE MATTER OF ROBERT KAPLAN, D.O., PETITIONER-APPELLANT


On appeal from final determination of Division of Medical Assistance and Health Services, Department of Human Services.

Matthews, Morton I. Greenberg and Coleman. The opinion of the court was delivered by Coleman, J.s.c. (temporarily assigned).

Coleman

This is an appeal from a final administrative decision rendered by the Director of the Division of Medical Assistance and Health Services (DMAHS), wherein appellant was ordered to pay the Medical Assistance and Health Services program (Medicaid) the sum of $8,711.96 under the civil penalty provisions of N.J.S.A. 30:4D-17(c). DMAHS was also ordered to pay appellant the sum of $4,477.80 for claims filed prior to his suspension.

The facts were essentially undisputed. On December 21, 1971 DMAHS suspended appellant indefinitely as a health care provider under the Medicaid program for failure to produce requested

records. The suspension was affirmed on appeal to this court on January 4, 1974. On October 5, 1972 appellant was charged in a 30-count indictment with Medicaid fraud in violation of N.J.S.A. 30:4D-17. On June 27, 1973 he was convicted on three counts of the said indictment involving four recipients totalling $154. On July 31, 1973 appellant was sentenced to a suspended 12- to 15-month term to State Prison and a $3,000 fine was imposed. At the time of sentencing the State represented that appellant had no pending charges against him. On December 18, 1973 applicant's license to practice medicine and surgery was suspended by the New Jersey Board of Medical Examiners. On June 12, 1975 this court affirmed the criminal convictions and on September 16, 1975 the Supreme Court denied certification. 68 N.J. 483. On September 18, 1975 a deputy attorney general wrote a letter to appellant's then attorney acknowledging that an administrative hearing was still pending since an earlier date in 1975 for purposes of determining the amount of reimbursements to be made to DMAHS and what amount of money should be paid over to appellant. The letter acknowledged that the administrative hearing had been postponed since early 1975 by request of appellant while his appeal from the criminal convictions was pending.

Effective September 15, 1976 the Legislature amended N.J.S.A. 30:4D-17(c) to increase the civil remedies from recovery of the overpayment to treble damages, interest and a penalty of $2,000 for each excessive claim. No action was taken on the administrative hearing to fix the reimbursement or to pay appellant until November 21, 1977, when appellant's new attorney wrote to Prudential, the fiscal intermediary of Medicaid, seeking payment of outstanding claims previously submitted. On March 15, 1978 DMAHS filed the administrative action seeking payment of the civil penalties in accordance with the September 15, 1976 amendment to N.J.S.A. 30:4D-17(c). Said amendment provided that it would retroactively apply to all pending and subsequent judicial and administrative proceedings.

The administrative law judge concluded that appellant was due $4,477.50 without interest for unpaid claims, and that DMAHS did not have a pending administrative recovery action pending on September 15, 1976 and thus was not entitled to any recovery. The DMAHS Director affirmed the grant to appellant but rejected the administrative law judge's conclusion that DMAHS did not have a pending case or claim on September 15, 1976. The Director concluded that the letters between the deputy attorney general and appellant's attorney in September and October 1975 evidenced a pending administrative recovery action that had been suspended during appellant's appeal from his criminal conviction.

Appellant argues that (1) no administrative recovery action was pending on September 15, 1976; (2) the retroactive application of the said statute to him is an ex post facto law and denies him due process; (3) he is entitled to payment for all claims submitted; (4) he is entitled to interest on the reimbursement and (5) he is entitled to counsel fees.

A serious question exists as to whether an administrative proceeding was pending on September 15, 1976 within the meaning of N.J.S.A. 30:4D-17(c). We have not been supplied a copy of the alleged 1974 demand for administrative recovery. The letters in 1975 between the deputy attorney general and appellant's then attorney are inconclusive. Since we have decided to reverse for other reasons, we need not reach this question.

Article I, ยง 10 of the United States Constitution prohibits a state from passing any ex post facto law. This prohibition limits the powers of the states only with regard to the imposition of criminal punishment. Harisiades v. Shaughnessy , 342 U.S. 580, 594, 72 S. Ct. 512, 521, 96 L. Ed. 586 (1952), reh. den. 343 U.S. 936, 72 S. Ct. 767, 96 L. Ed. 1344 (1952). Whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction. The first level of inquiry is ...


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