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THE FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE.

The First Department, over a two-justice dissent, determined the administrative law judge’s (ALJ’s) finding that petitioner’s (mother’s) child was in imminent danger of harm was not supported by the evidence. Petitioner was caught shoplifting (wearing clothes under her clothes). At the time her five-year-old son was with her, and he too was wearing clothes under his clothes. The shoplifting charges were reduced to a violation and the record was sealed. Petitioner had no other contact with the criminal justice system. The child was deemed well cared for and happy. The issue was whether the petitioner’s name should be maintained on a list (“indicated” child abuse) which will make it difficult for her to continue her career in child care:

Under New York’s child protective scheme, a report of suspected child abuse or neglect will be marked “indicated” if the local agency determines after investigation that there is “some credible evidence of the alleged abuse or maltreatment” (Social Services Law § 412[7]). All childcare agencies and other agencies licensed by the state to provide certain services to children are required to inquire whether applicants for employment or to become foster or adoptive parents are subjects of indicated reports (Social Services Law § 424-a). An agency may choose to hire or approve persons on the list of those with indicated reports, but if it does, the agency must “maintain a written record, as part of the application file or employment record, of the specific reasons why such person was determined to be appropriate” for approval (Social Services Law § 424-a[2][a]). The names of subjects of indicated reports remain on the list until 10 years after the youngest child referred to in the report turns 18, unless earlier expunged (Social Services Law § 422[6]). * * *

… [T]he ALJ’s determination that petitioner’s actions were reasonably related to a position in childcare, the field of study petitioner is pursuing, was not rational. The legal standards for determining whether a child is maltreated … are repeated in the Guidelines. The ALJ failed to set forth his consideration of the relevant Guidelines for making such a determination, many of which, as the motion court pointed out, weighed in petitioner’s favor, including factors 2 (the seriousness and extent of any injury to child), 3 (harmful effect on the child of the subject’s actions or inactions), 5 (time since most recent incident of maltreatment), 6 (number of indicated incidents of abuse or maltreatment), 8(a) (whether the acts have been repeated), and 10 (whether reported behavior involved serious injury to, or death of, a child). The single factor the ALJ discussed, factor 8(b), “any information produced . . . in regard to . . . rehabilitation,” failed to consider that all of the evidence at the hearing indicated that petitioner has never been convicted of any crime…; no further [shoplifting] incidents had occurred; petitioner had no prior history with ACS (NYC Administration for Children’s Services); all of her family members interviewed expressed surprise at her behavior on the occasion leading to the report; and she told the caseworker she had “learned her lesson.” Matter of Natasha W. v New York State Off. of Children & Family Servs., 2016 NY Slip Op 08099, 1st Dept 12-1-16

FAMILY LAW (FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE)/SOCIAL SERVICES LAW (CHILD ABUSE, FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE)/CHILD ABUSE (FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE)/CHILD CARE (FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE)

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STATUTE CUTTING OFF COUNTIES’ ABILITY TO SEEK MEDICAID OVERBURDEN EXPENSES IS CONSTITUTIONAL.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined Section 61 of the Executive Budget Law, which cut-off counties’ ability to seek Medicaid “overburden expenses” as of January 1, 2006, is constitutional. The State Executive Budget Memorandum explained that the purpose of Section 61 was to “to clarify that local governments cannot claim for overburden expenses incurred prior to January 1, 2006 when the ‘local cap’ statute that limited local contributions to Medicaid expenditures took effect. This is necessary to address adverse court decisions that have resulted in State costs paid to local districts for pre-cap periods, which conflict with the original intent of the local cap statute:”

Once the State complied with its statutory obligation under Social Services Law § 368-a (1) (h) (i) to pay the counties for overburden reimbursements, it was fully consistent with the prior mandatory reimbursement scheme for the Legislature to impose a deadline on claims for unpaid funds. That deadline was neither in conflict with a fundamental law nor our constitutional principles. Just as the Counties cannot be heard to complain that the Legislature replaced one Medicaid allocation scheme with another, thus redefining the counties’ expense burden, so too are the counties without recourse when the Legislature imposes a deadline on the counties’ submission of claims for overburden reimbursements, thereby closing the door on pre-2006 claims. Matter of County of Chemung v Shah, 2016 NY Slip Op 07043, CtApp 10-27-16

 

MEDICAID (STATUTE CUTTING OFF COUNTIES’ ABILITY TO SEEK MEDICAID OVERBURDEN EXPENSES IS CONSTITUTIONAL)/MUNICIPAL LAW (COUNTIES, MEDICAID REIMBURSEMENT, STATUTE CUTTING OFF COUNTIES’ ABILITY TO SEEK MEDICAID OVERBURDEN EXPENSES IS CONSTITUTIONAL)/COUNTIES (MEDICAID REIMBURSEMENT, STATUTE CUTTING OFF COUNTIES’ ABILITY TO SEEK MEDICAID OVERBURDEN EXPENSES IS CONSTITUTIONAL)

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MOTHER, WHO DEFAULTED, ENTITLED TO DISPOSITIONAL HEARING IN PROCEEDINGS TO TERMINATE HER PARENTAL RIGHTS BASED UPON MENTAL ILLNESS AND PERMANENT NEGLECT.

The Second Department determined mother’s motion to vacate the dispositional portions of the orders terminating her parental rights based upon mental illness and permanent neglect should have been granted. Mother defaulted, but moved to vacate both the fact-finding a dispositional aspects of the orders:

Family Court improvidently exercised its discretion in denying that branch of the mother’s motion which was to vacate the dispositional portions of the orders of fact-finding and disposition. Although, in the context of a proceeding pursuant to Social Services Law § 384-b to terminate parental rights based on mental illness, a separate dispositional hearing is not necessarily required in every case … , the circumstances of this case were not such that a separate dispositional hearing was unwarranted … . Furthermore, in the case of permanent neglect, the Family Court may not dispense with a dispositional hearing in the absence of the consent of the parties … . Consequently, the mother was entitled to vacatur of the dispositional portions of the orders of fact-finding and disposition in the interest of justice … . Matter of Isabella R.W. (Jessica W.), 2016 NY Slip Op 05715, 2nd Dept 8-3-16

FAMILY LAW (MOTHER, WHO DEFAULTED, ENTITLED TO DISPOSITIONAL HEARING IN PROCEEDINGS TO TERMINATE HER PARENTAL RIGHTS BASED UPON MENTAL ILLNESS AND PERMANENT NEGLECT)/PARENTAL RIGHTS, TERMINATION OF (MOTHER, WHO DEFAULTED, ENTITLED TO DISPOSITIONAL HEARING IN PROCEEDINGS TO TERMINATE HER PARENTAL RIGHTS BASED UPON MENTAL ILLNESS AND PERMANENT NEGLECT)/PERMANENT NEGLECT (MOTHER, WHO DEFAULTED, ENTITLED TO DISPOSITIONAL HEARING IN PROCEEDINGS TO TERMINATE HER PARENTAL RIGHTS BASED UPON MENTAL ILLNESS AND PERMANENT NEGLECT)

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EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED; NOTICES OF MANDATORY MEETINGS REGARDING WORK-REQUIREMENTS UNDER THE FAMILY ASSISTANCE PROGRAM DID NOT VIOLATE THE SOCIAL SERVICES LAW.

The First Department, in a full-fledged opinion by Justice Acosta, over a two-justice dissenting opinion, reversing Supreme Court, determined: (1) although the finding that petitioner had violated work-related requirements under the family assistance program was reversed and the reduction in petitioner's benefits had been restored, the appeal was not moot; (2) the wording of the notices of required meetings for work-assessment under the family assistance program did not violate the Social Services Law; and (3) the propriety of the “autopost” system by which petitioner's failure to attend a scheduled meeting resulted in an automatically posted infraction must be determined in the context of a summary judgment or a trial (not this declaratory judgment action). The dissenters argued the appeal was moot and should not have been heard:

… [W]e find that the notices at issue do not violate the applicable regulatory scheme. In reviewing these notices, we are mindful that “[t]he standard for judicial review of an administrative regulation is whether the regulation has a rational basis and is not unreasonable, arbitrary or capricious” … , or contrary to the statute under which it was promulgated … . The party challenging a regulation has the heavy burden of establishing that “it is so lacking in reason for its promulgation that it is essentially arbitrary” … . * * *

The regulation and notices closely track the statute, which focuses on how a recipient can demonstrate good cause for having failed to comply with work requirements. In fact, every requirement set forth in SSL § 341 is incorporated into the notices. The crux of Supreme Court's holding is that the regulation and notices do not satisfy a requirement that recipients be expressly told that they can avoid sanction by asserting compliance. The statute on its face, however, simply contains no such requirement. This is particularly true for the notice of decision, because SSL § 341(1)(b) does not require that the notice give examples of good cause. Under these circumstances, this Court cannot find that 18 NYCRR 385.11 and the notices were unreasonable or arbitrary. Matter of Puerto v Doar, 2016 NY Slip Op 04463, 1st Dept 6-9-16

SOCIAL SERVICES LAW (NOTICES OF MANDATORY MEETINGS REGARDING WORK-REQUIREMENTS UNDER THE FAMILY ASSISTANCE PROGRAM DID NOT VIOLATE THE SOCIAL SERVICES LAW)/FAMILY ASSISTANCE PROGRAM (NYC) (NOTICES OF MANDATORY MEETINGS REGARDING WORK-REQUIREMENTS UNDER THE FAMILY ASSISTANCE PROGRAM DID NOT VIOLATE THE SOCIAL SERVICES LAW)/APPEALS (EXCEPTION TO THE MOOTNESS DOCTRINE APPLIED; NOTICES OF MANDATORY MEETINGS REGARDING WORK-REQUIREMENTS UNDER THE FAMILY ASSISTANCE PROGRAM DID NOT VIOLATE THE SOCIAL SERVICES LAW)

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SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT.

The Court of Appeals, over an extensive two-judge dissent, determined, under the Executive Law, a special prosecutor has the authority to bring a criminal case in local court concerning the abuse of vulnerable persons pursuant to the “Protection of People with Special Needs Act.” Defendant unsuccessfully argued the Executive Law limited the power of the special prosecutor to criminal prosecutions in County and Supreme Court:

There is no indication from the statute that the special prosecutor’s powers are limited by section 552 (2) (c). That section merely sets forth the requirement that the special prosecutor consult with the district attorney of the pertinent county should the special prosecutor wish to appear in County Court or Supreme Court, or before the grand jury, for the purposes of managing or conducting before such court or grand jury a criminal action or proceeding involving the abuse or neglect of a vulnerable person. There is no indication that the statute governs proceedings in local courts at all. People v Davidson, 2016 NY Slip Op 04326, CtApp 6-7-16

 

CRIMINAL LAW (SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT)/EXECUTIVE LAW (SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT)/SOCIAL SERVICES LAW (SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT)/VULNERABLE PERSONS (SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT)/PROTECTION OF PERSONS WITH SPECIAL NEEDS ACT (SPECIAL PROSECUTOR HAS AUTHORITY TO BRING CRIMINAL ACTIONS IN LOCAL COURTS PURSUANT TO THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT)

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JUSTICE CENTER DID NOT HAVE THE STATUTORY AUTHORITY TO MAKE A NEGLECT FINDING AGAINST A FACILITY FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES.

The Third Department, in a full-fledged opinion by Justice Peters, determined the controlling Social Services Law statutes did not give the Justice Center for the Protection of Persons with Special Needs (Justice Center) the authority to find make a “neglect” finding against a facility for people with developmental disabilities. When two staff members left a resident unsupervised the resident engaged in inappropriate sexual conduct. The resident had acted similarly in the past:

… [T]he issue before us “is one of pure statutory interpretation dependent only on accurate apprehension of legislative intent” … . In performing this function, we are “constitutionally bound to give effect to the expressed will of the Legislature and the plain and obvious meaning of a statute is always preferred to any curious, narrow or hidden sense that nothing but a strained interpretation of legislative intent would discern” … .

… While the Justice Center is indeed permitted to make a “concurrent finding” with respect to a facility or provider agency in conjunction with either a substantiated or unsubstantiated report, the scope of that “concurrent finding” is expressly circumscribed by the statute. By its terms, the only “concurrent finding” that may be made is “that a systemic problem caused or contributed to the occurrence of the incident” (Social Services Law § 493 [3] [b]). Had the Legislature intended to authorize the Justice Center to make a concurrent finding of neglect as against a facility or provider agency, it could have expressly said so. Likewise, if it was the intent of the Legislature to equate a finding “that a systemic problem caused or contributed to the occurrence of the incident” with a finding of “neglect,” it could have easily done so through use of the term “neglect.” It is axiomatic that “new language cannot be imported into a statute to give it a meaning not otherwise found therein” (McKinney's Cons Laws of NY, Book 1, Statutes § 94 at 190), nor can a court “amend a statute by inserting words that are not there” … . Matter of Anonymous v Molik, 2016 NY Slip Op 04288, 3rd Dept 6-2-16

SOCIAL SERVICES LAW (JUSTICE CENTER DID NOT HAVE THE STATUTORY AUTHORITY TO MAKE A NEGLECT FINDING AGAINST A FACILITY FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES)/DEVELOPMENTAL DISABILITIES, PEOPLE WITH (JUSTICE CENTER DID NOT HAVE THE STATUTORY AUTHORITY TO MAKE A NEGLECT FINDING AGAINST A FACILITY FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES)/NEGLECT (JUSTICE CENTER DID NOT HAVE THE STATUTORY AUTHORITY TO MAKE A NEGLECT FINDING AGAINST A FACILITY FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES)

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FAILURE TO COMPLY WITH ALL THE NOTICE REQUIREMENTS FOR JUDICIAL SURRENDER OF PARENTAL RIGHTS WAS NOT A GROUND FOR VACATION OF THE JUDICIAL SURRENDER.

The Second Department, over a dissent, determined Family Court’s failure to strictly comply with all the notice requirements for judicial surrender of parental rights was not a ground for vacation of the judicial surrender:

Social Services Law § 383-c(3)(b) defines the procedures to be followed for the execution of judicial surrenders. Specifically, it requires the court to inform the parent of the right to legal counsel and to obtain supportive counseling, and to inform the parent of the consequences of the surrender, including the permanent loss of custodial rights and the immediate and irrevocable effect of the surrender. After informing the parent that the surrender becomes final and irrevocable upon its execution and acknowledgment, the court must provide the parent with a copy of the written instrument. * * *

A clear reading of the statute indicates that the failure by a court to orally advise a surrendering parent in open court of his/her right to supportive counseling is not a ground upon which a parent may rely when seeking to vacate or revoke a surrender. Pursuant to Social Services Law § 383-c(6)(d), the only available grounds for such relief are fraud, duress, or coercion. No such allegations are present in this case. Matter of Naquan L.G. (Carolyn C.), 2016 NY Slip Op 04218, 2nd Dept 6-1-16

FAMILY LAW (FAILURE TO COMPLY WITH ALL THE NOTICE REQUIREMENTS FOR JUDICIAL SURRENDER OF PARENTAL RIGHTS WAS NOT A GROUND FOR VACATION OF THE JUDICIAL SURRENDER)/PARENTAL RIGHTS (FAILURE TO COMPLY WITH ALL THE NOTICE REQUIREMENTS FOR JUDICIAL SURRENDER OF PARENTAL RIGHTS WAS NOT A GROUND FOR VACATION OF THE JUDICIAL SURRENDER)/JUDICIAL SURRENDER (PARENTAL RIGHTS, (FAILURE TO COMPLY WITH ALL THE NOTICE REQUIREMENTS FOR JUDICIAL SURRENDER OF PARENTAL RIGHTS WAS NOT A GROUND FOR VACATION OF THE JUDICIAL SURRENDER)/SOCIAL SERVICES LAW (JUDICIAL SURRENDER OF PARENTAL RIGHTS, FAILURE TO COMPLY WITH ALL THE NOTICE REQUIREMENTS FOR JUDICIAL SURRENDER OF PARENTAL RIGHTS WAS NOT A GROUND FOR VACATION OF THE JUDICIAL SURRENDER)

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MORTGAGE HAD PRIORITY OVER COUNTY’S CLAIM FOR REIMBURSEMENT OF MEDICAID BENEFITS.

The Third Department determined a mortgage held by Wells Fargo had priority to a claim by the county seeking reimbursement of Medicaid benefits received by the decedent:

 

Petitioner [Saratoga County Department of Social Services] asserts priority pursuant to Social Services Law § 104 (1), which provides, in relevant part, that “[i]n all claims of the public welfare official made under [such] section[,] the public welfare official shall be deemed a preferred creditor” (emphasis added). “Preferred creditor” has been construed to give a social services department priority over a “general creditor, that is, a creditor that, upon giving credit, takes no rights against specific property of a debtor” … . Here, Wells Fargo holds a mortgage lien against the Rotterdam property that was recorded prior to the May 2014 decree of Surrogate's Court validating petitioner's claim. Although Medicaid assistance was provided to decedent before the mortgage was given, petitioner did not have a prior lien against the property (see Social Services Law § 369 [2] [a]). As such, we conclude that Wells Fargo's prior specific lien gives it priority over petitioner's claim with respect to the … property … . Matter of Shambo, 2016 NY Slip Op 02699, 3rd Dept 4-7-16


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DSS FAILED TO DEMONSTRATE DILIGENT EFFORTS TO STRENGTHEN PARENTAL RELATIONSHIP, TERMINATION OF FATHER’S PARENTAL RIGHTS REVERSED.

The Second Department, reversing Family Court, determined the Department of Social Services (DSS) did not make diligent efforts to strengthen the relationship between father and the children before seeking termination of the father’s parental rights on the ground of permanent neglect:

 

In proceedings to terminate parental rights based on permanent neglect, the agency must first establish, by clear and convincing evidence, that it made diligent efforts to encourage and strengthen the parental relationship with the child (see Social Services Law § 384-b[7][a]…). The efforts must include reasonable attempts at providing counseling, scheduling regular visitation with the child, providing other services to the parent to overcome the particular problems that separated the parent from his or her child, and informing the parent of his or her child’s progress (see Social Services Law § 384-b[7][f]…). The court “shall also consider the particular constraints, including but not limited to, limitations placed on family contact and the unavailability of social or rehabilitative services to aid in the development of a meaningful relationship between the parent and his or her child, that may impact the parent’s ability to substantially and continuously or repeatedly maintain contact with his or her child and to plan for the future of his or her child” (Social Services Law § 384-b[7][a]).

Here, DSS failed to meet its initial burden of demonstrating that it exercised diligent efforts to strengthen the parental relationship between the father and his children … . DSS’s evidence demonstrated that its caseworkers’ focus was on the mother’s relationship with the children, as she was the initial subject of the proceedings and the father was not a party thereto. Further, although the evidence adduced at the fact-finding hearing showed that the DSS caseworkers advised the father to seek unsupervised visitation with the children since the supervised visits were positive, the evidence also showed that DSS did not support such unsupervised visitation and was aware that the father’s access to the children was limited by the order of protection. Moreover, although DSS scheduled supervised visits between the father and the children and provided the father with notices of regularly scheduled permanency hearings and service plan reviews, it did little more to determine the particular problems facing the father with respect to the return of his children and did not make affirmative, repeated, and meaningful efforts to assist him in overcoming these handicaps before it commenced these proceedings … . Further, DSS’s evidence demonstrated that the father satisfied all requests that DSS made of him, which included attending a parenting class and marriage counseling, and showed himself to be a loving and appropriate parent at the supervised visitation sessions.  Matter of Gabriel B. S.-P. (Anonymous) (Franklin S. (Anonymous)), 2016 NY Slip Op 00645, 2nd Dept 2-3-16

 

FAMILY LAW (DSS DID NOT MAKE DILIGENT EFFORTS TO STRENGTHEN PARENTAL RELATIONSHIP, TERMINATION OF PARENTAL RIGHTS REVERSED)/PARENTAL RIGHTS (TERMINATION REVERSED, DSS DID NOT MAKE DILIGENT EFFORST TO STRENGTHEN RELATIONSHIP)/TERMINATION OF PARENTAL RIGHTS (REVERSED, DSS DID NOT MAKE DILIGENT EFFORTS TO STRENGTHENN RELATIONSHIP)

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DEPARTMENT OF HEALTH EXECUTIVE-COMPENSATION-CAP AND CONFLICT-OF-INTEREST RULES FOR AGENCIES PROVIDING SERVICES TO DEVELOPMENTALLY DISABLED CHILDREN DO NOT VIOLATE THE SEPARATION OF POWERS DOCTRINE.

The First Department, in a full-fledged opinion by Justice Dickerson, reversing Supreme Court, determined that two Department of Health (DOH) rules concerning services provided to developmentally disabled children did not violate the separation of powers doctrine. One rule placed a cap on executive compensation, and the other prohibited an agency which evaluates a child’s need for services from itself providing those services (“conflict of interest” rule). The First Department explained the underlying general principles and then went through each of the Boreali [71 NY2d 1] “separation of powers” factors for each rule:

“The cornerstone of administrative law is derived from the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation” … . “The constitutional principle of separation of powers . . . requires that the [L]egislature make the critical policy decisions, while the executive branch’s responsibility is to implement those policies” … . “The branches of government cannot always be neatly divided, however, and common sense must be applied when reviewing a separation of powers challenge. As long as the [L]egislature makes the basic policy choices, the legislation need not be detailed or precise as to the agency’s role” … . Where an agency has been endowed with broad power to regulate in the public interest, courts generally will uphold reasonable acts that further the regulatory scheme … .

[The Boreali] factors are (1) “whether the agency did more than balanc[e] costs and benefits according to preexisting guidelines, but instead made value judgments entail[ing] difficult and complex choices between broad policy goals to resolve social problems”; (2) “whether the agency merely filled in details of a broad policy or if it wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance”; (3) “whether the [L]egislature has unsuccessfully tried to reach agreement on the issue, which would indicate that the matter is a policy consideration for the elected body to resolve”; and (4) “whether the agency used special expertise or competence in the field to develop the challenged regulations” … . The “central theme” of a Boreali analysis is that “an administrative agency exceeds its authority when it makes difficult choices between public policy ends, rather than find[ing] means to an end chosen by the Legislature” … . Agencies for Children’s Therapy Servs., Inc. v New York State Dept. of Health,  2015 NY Slip Op 09647, 2nd Dept 12-30-15

ADMINISTRATIVE LAW (SERVICES FOR DEVELOPMENTALLY DISABLED CHILDREN, DOH EXECUTIVE COMPENSATION CAP AND CONFLICT OF INTEREST RULES DO NOT VIOLATE SEPARATION OF POWERS DOCTRINE)/DEVELOPMENTALLY DISABLED CHILDREN, SERVICES FOR (DOH EXECUTIVE COMPENSATION CAP AND CONFLICT OF INTEREST RULES DO NOT VIOLATE SEPARARY OF POWERS)/DEPARTMENT OF HEALTH (EXECUTIVE COMPENSATION CAP AND CONFLICT OF INETERST RULES DO NOT VIOLATE SEPARATION OF POWERS DOCTRINE)/SEPARATION OF POWERS DOCTRINE (SERVICES FOR DEVELOPMENTALLY DISABLED CHILDREN, DOH EXECUTIVE COMPENSATION CAP AND CONFLICT OF INTEREST RULES DO NOT VIOLATE SEPARATION OF POWERS DOCTRINE)

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