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In re D''Aconti

October 23, 1998

IN RE: JOHN S. D'ACONTI, D.O.


Before Judges King, Newman and Fall.

The opinion of the court was delivered by: The opinion of the court was delivered by Newman, J.A.D.

[9]    Argued: October 7, 1998

On appeal from a final decision of the State Board of Medical Examiners, Department of Law and Public Safety.

Petitioner, Dr. John S. D'Aconti, appeals the New Jersey Board of Medical Examiners' (Board) decision denying him leave to file a petition for modification of a consent order, disciplining him for failing to keep adequate patient medical records, entered into by petitioner and the Board on February 4, 1986. Petitioner asserts that public disclosure of the order has caused managed health care organizations to refuse petitioner panel status thereby interfering with his right to pursue his livelihood. Petitioner contends that the Board's failure in 1996 to afford him a hearing and expunge or modify the order resulted in violations of his constitutional rights. Petitioner asks this court to order the Board to modify or expunge the 1986 order, or, alternatively remand the matter to the Board so that a full presentation may be made and an appropriate remedy fashioned. We are satisfied that the Board has correctly responded to petitioner and affirm.

The relevant facts may be summarized as follows. In 1985, Dr. D'Aconti learned that he was being investigated by the Board, concerning allegations of over-utilization of physical therapy services to one patient between August 1982 and November 1983. On September 25, 1985, Dr. D'Aconti appeared before the Board's Executive Committee and testified in response to the allegations. On February 4, 1986, the Board filed a public consent order, which was agreed upon by the Board and Dr. D' Aconti, who was then represented by counsel. The order recites the following facts:

"1. The Board's investigation commenced upon the Board's receipt of information concerning Dr. D' Aconti's treatment of Marie Kalucki from August 24, 1982 through November 21, 1983."

"2. Based upon Dr. D'Aconti's testimony and patient records, the Board concluded that Dr. D'Aconti's reliance on and provision of physical therapy for the duration that it was utilized could not be supported by the information contained in his patient records."

"3. Dr. D'Aconti kept inadequate records detailing the therapy he provided."

As a result of these consented-to fact findings, the Board determined that Dr. D'Aconti's failure to maintain adequate medical records constituted a violation of N.J.A.C. 13:35-6.5 (rule requiring the maintaining of patient records). Thus, the Board ordered that:

"1. Dr. D'Aconti pay $2,500.00 in penalties. 2. Dr. D'Aconti prepare and maintain appropriate patient records documenting the patient's progress where physical therapy services are offered in his office."

"3. When delegating the responsibility of administering physical modalities in his office, respondent shall comply with all of the provisions of N.J.A.C. 13:35-6.14 (setting forth the scope of delegable activities and continuing responsibility that the delegating physician must bear)."

The consent order was the only public document filed in this matter, and was then, and is now, considered by the Board to be the final order entered of record. As a result, since the date it was filed, February 4, 1986, any member of the public who inquired of the Board whether any public information existed concerning Dr. D'Aconti would, pursuant to the Right to Know Law, N.J.S.A. 47:1A-1, have been advised of the consent order, and any individual requesting the order would have been furnished a copy.

Following entry of the consent order, this matter remained dormant for over eight years until June 24, 1994 when the Board received correspondence from Anthony Malanga, Dr. D'Aconti's counsel at the time the initial order was negotiated. The letter related that dissemination of the order to various HMOs and other health insurance plans presumably led to Dr. D'Aconti's being denied participation by these HMOs and health insurance groups as a medical referral panelist. The letter requested that the Board rescind the public disclosure of the order.

The Board's Executive Director responded to the letter, stating that "this Board is not in a position to rescind the publicizing of an informal resolution since the enclosed is a public order and not an informal private resolution."

Subsequently, by letter dated August 29, 1996, Dr. D'Aconti, through present counsel, wrote to the Board explaining the unintended disciplinary effect that the consent order was having on him and requesting that the Board take action to prevent further harm. The letter explained that:

"... the presence of the Consent Order, together with the advent of the managed care credentialing process, has caused Dr. D'Aconti direct and certain irreparable harm. The managed care organizations have focused on the fact of this Order, whose effect could not have been anticipated as far back as 1986, as a means of deselecting physicians from their panels. The effect of this practice, whether denied or not by managed care directors, has had the unintended disciplinary effect, where no discipline was originally imposed by the [Board]. The effect of the Order, as far as its impact on Dr. D'Aconti's Medicaid practice has been tantamount to the [Board], in 1986, having revoked or suspended his medical license."

In the August 29, 1996 letter, Dr. D'Aconti also petitioned the Board to review the action of the prior Board and to modify or expunge the 1986 consent order.

The Board considered the aforementioned letter at its September 1996 meeting. Dr. D'Aconti was not present during this meeting. The minutes from the Board meeting reflect that the letter was treated as a request for leave to file a petition to modify the 1986 order. The Board, upon the advice of the Attorney General, voted to deny Dr. D'Aconti's leave to file a petition for modification of the 1986 order, and further voted that it would not grant Dr. D'Aconti an appearance before the Board or a Committee of the Board to discuss the matter. The Board's Minutes provide that the advice of the Attorney General's office was that "there is no basis to tell the attorney anything other than her client has an order on file, the effect is the doctor's problem, and the terms of the order are clear." Subsequently, by letter dated ...


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