Matter of Pitman v Daines, 2011 NY Slip Op 08681 [90 AD3d 421]

Dcmbr 1, 2011

Appellate Division, First Department

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Goldfarb Abrandt Salzman & Kutzin LLP, New York (Ira Salzman of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York (Sudarsana Srinivasan of counsel), for Richard F. Daines, M.D. and David Hansell, respondents.

Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), for Robert Doar, respondent.

Determination of respondent New York State Department of Health, dated January 7, 2009, which, after a fair hearing, affirmed respondent New York City Human Resources Administration’s determination denying petitioner executor’s application to have the deceased’s net available monthly income reduced for Medicaid eligibility purposes by amounts the deceased paid for private nurses while residing in a nursing home, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, Bronx County [Barry Salman, J.], entered September 2, 2010), dismissed, without costs.

Respondents’ determination that private 24-hour nursing care may have provided the deceased with “optimal care” but was not “essential” care that was “medically necessary” for purposes of Medicaid reimbursement is based on substantial evidence. The agency’s determination is entitled to deference because it involves the agency’s interpretation of its own [*2] regulations and the legislation under which it functions ( Matter of Schlossberg v Wing , 277 AD2d 41 [2000]).

We have reviewed petitioner’s remaining contentions and find them unavailing. Concur—Tom, J.P., Catterson, Abdus-Salaam and RomÁn, JJ..