ALBANY, N.Y., December 11 – Revocation of a New York doctors medical license and the certificate of incorporation of a medical facility he owned on the basis of medical fraud was sustained by the Appellate Division, Third Department.

After Dr. Herron G. Rafftrey, sole owner of Rochdale Medical, P.C., failed to respond to a request by the Office of Professional Medical Conduct (OPMC) to review his records, a state investigator scanned them into his computer. OPMC followed with charges of professional misconduct containing 28 specifications. The state Board for Professional Medical Conduct sustained the specifications charging fraudulent practice, willfully making or filing false reports, practicing with negligence on more than one occasion, failing to maintain records reflecting evaluation and treatment, failing to report a discontinuation of privileges to hospitals and failing to comply with federal law concerning billing practices.

On the doctors appeal, the Administrative Review Board for Professional Medical Conduct (ARB) affirmed the determination and fined Rafftrey an additional $10,000 for repeated fraudulent conduct. A CPLR article 78 was filed to review whether OPMC exceeded its authority in scanning patient records without the doctors permission.

Judge P.J. Cardona, in his memorandum and judgment, said review of the claim is foreclosed since judicial review of administrative determinations pursuant to CPLR article 78 is limited to questions of law [and] preserved issues are not issues of law.

The judge further said on the doctors claim of being deprived of a fair hearing due to the ineffective assistance of counsel, We note that the right to effective assistance of counsel does not extend to administrative proceedings except in certain narrowly defined circumstances that are not present here.

Finally, given the pervasiveness and extent of the fraudulent practice herein, we cannot say that the revocation of Rafftreys license to practice medicine is so incommensurate with the offense as to shock ones sense of fairness.

Judges Edward O. Spain, Anthony J. Carpinello, Carl J. Mugglin, and Anthony T. Kane concurred.