Holliswood Care Center v. Axelrod , 451 N.Y.S.2d 295 ( 1982 )

Casey, J.,

dissents and votes to affirm in the following memorandum. Casey, J. (dissenting). I cannot agree with the majority that the change in the rules and regulations (10 NYCRR 86-2.14 [b]), effective April 1, 1978, should ipso facto extend by almost 17 months (Aug. 4, 1978 to Jan. 2, 1980) petitioner’s time in which to bring a proceeding to challenge its Medicaid reimbursement rate for the period from October 1, 1975 to March 31, 1977. Accordingly, I dissent. The major change effected by the amendment was to abolish the rate review board in the second stage of the administrative review procedure and substitute therefor a hearing presided over by a hearing officer. The amended regulations (10 NYCRR 86-2.14 [b] [1]) clearly provide in regard to such hearing that “The affirmation or revision of the rate upon * * * staff review shall be final, unless within 30 days of its receipt a hearing is requested” (emphasis added). This amendment, effective April 1, 1978, governed petitioner from that date as it governed all applicants. Therefore, even considering petitioner’s application as pending on April 1, 1978, the amendment plainly required petitioner to take the affirmative action of requesting the hearing now provided it, within 30 days of the affirmation of the rate. In petitioner’s case this must be measured from April 14, 1978, the date of the letter which stated “no adjustment [in petitioner’s rate] is warranted”. This determination by an authorized agent of the commissioner was the determination of the commissioner himself, as it must be under the amendment as well as under the former procedure. The tenor of the April 14 letter leaves no doubt about the finality of the determination made. Therefore, if petitioner wanted a hearing after the amendment became effective, it should have requested one within 30 days of that final determination. If petitioner did not desire such hearing, but rather wished to bring an article 78 proceeding attacking the determination, then it had four months from April 14, 1978 in which to do so. However, petitioner should not be permitted to do nothing and then, almost two years later, claim that the determination that was made by the commissioner on April 14, 1978 was nonfinal for failure to grant, after the amendment, the hearing that petitioner did not request. This being so, petitioner cannot be heard to complain of a plight that was of its own making. On substantially this same rationale, Special Term dismissed that part of petitioner’s application seeking review of its rate from October 1,1975 to March 31,1977, as untimely, and its judgment should be affirmed.