Citation Numbers: 50 A.D.2d 734
Filed Date: 12/2/1975
Status: Precedential
Modified Date: 1/12/2022
— Determination of the respondent State Commissioner, dated January 31, 1973, affirming a determination of the New York City Department of Social Services which denied petitioner’s application for retroactive, corrective medicaid payments, unanimously annulled, on the law, and in the interest of justice, without costs and without disbursements, and the petition granted to the extent of remanding for a further hearing to determine the value of the services provided and the amount to be reimbursed pursuant to the appropriate fee schedules. Petitioner is a quadriparetic who has been in continual receipt of chronic care treatment at Kingsbrook Medical Center, Brooklyn, New York, since September of 1971. Petitioner’s sole sources of income are public assistance from the New York City Department of Social Services and social security benefits. Upon petitioner’s admission to the hospital in September of 1971, her physicians advised petitioner’s sister, Kathleen Lawrence, that petitioner was in need of constant nursing care— in order to assist petitioner in the basic functions of daily living. However, when Kathleen Lawrence requested such care, she was told that it would not be provided. Thereafter, on or about October 18, 1971, respondents notified petitioner that she was eligible for medical assistance and inpatient care but that companion nursing services would not be provided. Accordingly, in order to provide the necessary medical assistance recommended by petitioner’s physicians, her sister, during the period commencing September 25, 1971 and ending February 1972, expended $3,330.35 of her own moneys. Subsequent to the initial denial, further requests for medical assistance in the form of companion nursing were made and denied. Petitioner, thereafter, requested a fair hearing and after numerous adjournments a hearing was held which affirmed the determination of the New York City Department of Social Services. The sole basis for the respondents’ determination was that subdivision 1 of section 367-a of the Social Services Law provides that "any payment with respect to any medical assistance shall be made to the person, institution, state department or agency or municipality supplying such medical assistance.” There is no doubt that petitioner, who has been determined to be eligible for medical assistance, should have been provided with inpatient nursing services. A State, in order to qualify for contribution of funds from the Federal Government, must conform to the guidelines promulgated by Congress (US Code, tit 42, § 1351 et seq). Medical assistance as defined by title 42 (§ 1396d, subd [a]) of the United States Code includes: "(1) inpatient hospital services * * * (8) private duty nursing services”. And, in accordance with the Federal guidelines, subdivision 2 of section 365-a of the New York State Social Services Law specifically provides that medical assistance "shall mean payment of * * * the cost of care, services * * * necessary to prevent, diagnose, correct or cure conditions