THE DEPARTMENT OF HEALTH’S DETERMINATION THE 91-YEAR-OLD PETITIONER WAS NOT ENTITLED TO CONTINUOUS CARE WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Department of Health’s (DOH’s) finding that the 91-year-old petitioner was not entitled to continuous care was not supported by the evidence:

“In reviewing a Medicaid eligibility determination made after a fair hearing, the court must review the record as a whole to determine if the agency’s decisions are supported by substantial evidence and are not affected by an error of law”… . Substantial evidence “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … . Here, since the subject determination was made after a quasi-judicial fair hearing, the substantial evidence standard applies, and not the arbitrary and capricious standard … .

The DOH’s determination that the petitioner failed to establish that she met the criteria for continuous personal care services was not supported by substantial evidence (see 18 NYCRR 505.14[a][2]). “Continuous personal care services means the provision of uninterrupted care, by more than one personal care aide, for more than 16 hours in a calendar day for a patient who, because of the patient’s medical condition, needs assistance during such calendar day with toileting, walking, transferring, turning and positioning, or feeding and needs assistance with such frequency that a live-in 24-hour personal care aide would be unlikely to obtain, on a regular basis, five hours daily of uninterrupted sleep during the aide’s eight hour period of sleep” … . Matter of Gurariy v Zucker, 2021 NY Slip Op 04356, Second Dept 7-15-21