| Matter of Dickinson v Daines |
| 2009 NY Slip Op 09743 [68 AD3d 1646] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Viola Dickinson, Respondent, v Richard F. Daines,M.D., Commissioner, New York State Department of Health, Appellant, et al.,Respondent. |
—[*1] Woods Oviatt Gilman LLP, Rochester (RenÉ H. Reixach of counsel) and Stephen J.McMahon, Camillus, for petitioner-respondent.
Appeal from a judgment (denominated order and judgment) of the Supreme Court,Onondaga County (Brian F. DeJoseph, J.), entered December 3, 2008 in a proceeding pursuant toCPLR article 78. The judgment granted the petition.
It is hereby ordered that the judgment so appealed from is reversed on the law without costsand the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul an"Amended Decision after Fair Hearing" (hereafter, amended determination) of respondentCommissioner of the New York State Department of Health (DOH) denying her application forMedicaid coverage on the ground that it was issued more than 90 days after her request for a fairhearing. We conclude that Supreme Court erred in granting the petition.
The record establishes that petitioner's initial application for Medicaid was denied, and thatpetitioner requested a fair hearing on June 14, 2007. The fair hearing was held 91 days later, anda determination granting petitioner's application was issued 99 days following the fair hearing.On February 4, 2008, 45 days after issuance of that determination, the Onondaga CountyDepartment of Social Services (DSS) requested "reconsideration" of the determination. Onemonth after the request, an amended determination denying the application was issued. Ingranting the petition, the court concluded that DOH was required to take "final administrativeaction" within the 90-day period set forth in subdivision (a) of 18 NYCRR 358-6.4. That waserror, inasmuch as DOH had the power to review the initial determination beyond the 90-dayperiod set forth in the regulation in question.
As a general rule, where an agency is directed by the Legislature to take action within aspecific time frame, "such [time frame] will be considered directory, absent evidence that such[*2]requirements were intended by the Legislature as a limitationon the authority of the body or officer" (Matter of City of New York v Novello, 65 AD3d 112, 116 [2009];see Matter of Grossman v Rankin, 43 NY2d 493, 501 [1977]). Where, however,legislation providing for an administrative determination explicitly prescribes the time frame formaking a determination and provides that the agency is required to act within the specified timeframe, there is "an unmistakable limitation on the [agency's] authority to act" beyond that timeframe (Novello, 65 AD3d at 116). Here, Social Services Law § 364, the statutedirecting DOH to "establish[ ] and maintain[ ] standards for medical care and eligibility," doesnot mandate any time frame for "making final administrative determinations and issuing finaldecisions concerning such matters" (§ 364 [2] [h]). Indeed, the statute expresses nolegislative intent that the failure of DOH to act within the regulatory time frame will deprive theagency of the power to act. We therefore conclude that the 90-day period in the regulation inquestion does not reflect a legislative intent to deprive DOH of the power to act on petitioner'sMedicaid application based on the failure of DOH to take final administrative action on theapplication within 90 days. Thus, DOH retained the power to act on petitioner's applicationbeyond the 90-day period set forth in the regulation in question (cf. Novello, 65 AD3d at116-117).
We reject the court's conclusion that it was unreasonable for DOH to seek review of theinitial determination 45 days after the determination was issued. The regulations contain noprescribed time period for seeking such review, and we conclude that 45 days is a reasonabletime period in which DOH is entitled to seek "review [of] an issued fair hearing decision" (18NYCRR 358-6.6 [a] [1]; cf. Gomolisky v Davis, 716 NE2d 970 [Ind 1999]). We thusagree with DOH that the amended determination was properly issued pursuant to 18 NYCRR358-6.6 (a).
We recognize that, as noted by the dissent, there are circumstances in which publicassistance determinations must be made promptly (see generally Goldberg v Kelly, 397US 254, 264 [1970]). The Medicaid application here, however, involves no such exigentcircumstances (see generally 18 NYCRR 360-2.4 [c]). If such exigent circumstances hadbeen present, petitioner would have been entitled to priority with respect to the hearing anddetermination (see 18 NYCRR 358-3.2 [b] [9]).
Finally, we reject petitioner's contention that DSS was required to take an appeal from thejudgment in order to avoid being bound by the initial determination. In light of our conclusionthat the amended determination was properly issued, DSS is bound by that amendeddetermination (see 18 NYCRR 358-6.6 [a]).
All concur except Green and Gorski, JJ., who dissent and vote to affirm in the followingmemorandum.
Green and Gorski, JJ. (dissenting). We respectfully dissent, and would affirm the judgment.The conclusion of the majority that the time limitation set forth in 18 NYCRR 358-6.4 (a) shouldnot be considered mandatory stems from its belief that the regulation reflects only administrativeintent, not legislative intent. The Legislature, however, enacted Social Services Law § 364"[t]o assure that the medical care and services rendered pursuant to this title are of the highestquality and are available to all who are in need." In order to implement that policy, the statuteauthorizes the New York State Department of Health (DOH) to "mak[e] policy, rules andregulations for maintaining a system of hearings for applicants and recipients of medicalassistance adversely affected by the actions of the department or social service districts and formaking final administrative determinations and issuing final decisions concerning such matters"(§ 364 [2] [h]). Here, the regulation in question provides that "definitive and finaladministrative action must be taken promptly" (18 NYCRR 358-6.4 [a]), thus ensuring thatservices are available when they are in fact needed. Notably, 18 NYCRR 358-6.4 appliesnot only to Medicaid determinations, as in the instant case, but it also applies to householdbenefits such as food assistance and home energy assistance, as well as to protective services forchildren and adults (see 18 NYCRR 358-1.1, 358-2.20). Timely definitive and finalresolutions of questions of eligibility for such programs are imperative inasmuch as "terminationof aid pending resolution of a controversy over eligibility may deprive an eligible recipient of thevery means by which to live while he [or she] waits" (Goldberg v Kelly, 397 US 254,264 [1970]). We therefore conclude that the plain language of the regulation itself, i.e., theaffirmative directive that "definitive and final administrative action must be taken promptly,"with the further directive that such action must "in no event [be taken] more than 90 days fromthe date of the request for a fair hearing," necessitates the conclusion that the regulation imposesa mandatory time limitation upon the Commissioner of DOH (respondent) (18 NYCRR 358-6.4[a]; see Matter of City of New York vNovello, 65 AD3d 112, 116 [2009]). Further, we believe that the 90-day limitationapplies regardless of whether a recipient is also entitled to priority under 18 NYCRR 358-3.2.
Even assuming, arguendo, that the time limitation in 18 NYCRR 358-6.4 (a) may be deemeddiscretionary, we conclude that respondent nevertheless is "not permit[ted] . . . toignore completely the specific [administrative] provisions for timely action" (State Div. ofHuman Rights v Rinas, 42 AD2d 388, 390 [1973]). In our view, respondent's determinationto amend the initial determination following a fair hearing more than eight months afterpetitioner requested the fair hearing is an abuse of any discretion afforded by the regulation inquestion. We consider the delay unconscionable, as well as contrary to both the legislative andadministrative intent (see generally Social Services Law § 364; 18 NYCRR358-6.4 [a]). Present—Scudder, P.J., Hurlbutt, Green, Pine and Gorski, JJ.