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]). “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