The following papers, numbered 1 to 4, were read on this proceeding pursuant to Article 78 of the Civil Practice Law and Rules for an order granting the relief set forth in the Verified Petition:

Order to Show Cause/Verified Petition/Exhibits(A-J)-1-2

Verified Answer/Exhibits(A-F)-3

Reply Affirmation/Exhibit(A)-4

Upon the foregoing papers, it is ORDERED that this proceeding is disposed of as follows:

Petitioner Regina Lohe has been a resident of Nyack Manor Nursing home since July 2008. She suffers from Alzheimers Disease and is mentally incapacitated. Her husband, Edward Lohe, died on July 14, 2008. (Petitioners are Jeanette Dertinger is the Executrix of the Estate of Edward Lohe and Jeanette Dertinger and John Lohe are the Co-Attorneys-in-Fact for Regina Lohe.^[FN1])

In this proceeding Petitioners also seek an order directing Respondents to accept Regina Lohe and Edward Lohe's June 3, 2008 application for Medical Assistance and to retroactively restore all Medical Assistance withheld from Petitioners. Petitioners also seek to reverse and annul the July 10, 2008 Notice of Decision to deny Medical Assistance to Regina Lohe and Edward Lohe issued by the Rockland County Department of Social Services. Finally, Petitioners seek to reverse and annul the July 6, 2010 Decision After Fair Hearing issued by the Respondent Commissioner of the New York State Department of Social Services.

Because of her circumstances Petitioner Regina Lohe, was unable to assist in processing her medicaid application nor in the reconsideration process after it was denied. According to Petitioner, Regina Lohe's husband, Edward Lohe handled the family's business affairs and when his medical condition deteriorated he, too, was unable to assist in the medical application for himself and his wife. He died after the denial and was, of course, unable to assist in the reconsideration process. That task was then assumed by Petitioners.

Petitioners contend, among other things, that they cooperated in the reconsideration process and provided Respondents with all documents they were able to obtain including the eleven (11) items listed by the Respondent as missing and the reason for the denial of benefits. Petitioner states, "All these items and information were provided to the local agency and the local agency never contacted the Co-Agents that anything further was required."^[FN2] They also contend that the Respondents' failure to communicate with the family members who held a power of attorney denied them of the [*2]opportunity to provide the hearing officer with an accurate list of what documents, if any, were still needed. Petitioners also contend that Respondents impermissibly shifted' the burden of making a collateral investigation into the needed documents to the applicant/recipient when the applicant/recipient was unable to provide verification of assets. It is the Petitioners' contention that Respondents' denial of Petitioners' application for Medical Assistance because information was lacking was arbitrary, capricious and in violation of law.

Respondents oppose Petitioners' request for reconsideration of its denial of Petitioners' Medical Assistance Requests, contending that it was unable to determine her application for Medical Assistance since needed (and requested) essential eligibility documents had not been provided. The denial was made even after the hearing was reopened to accept additional testimony and evidence from the parties. Respondent then affirmed its determination when the requested information was not received.

It has been observed that "...the arbitrary [and] capricious test chiefly relates to whether a particular action should have been taken or is justified .... and whether the administrative action taken is without foundation in fact' " Matter of Pell v. Board of Educ., 34 NY2d 222; Matter of Bravata's Carting v. Town of Huntington, 120 AD2d 521. In applying the "arbitrary and capricious" standard, a court inquires whether the determination under review had a rational basis. Under this standard, a determination should not be disturbed unless the record shows that the agency's action was "arbitrary, unreasonable, irrational or indicative of bad faith" Matter of Cowan v. Kern, 41 NY2d 591; Matter of Pell v. Board of Educ., supra 231, "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts". Halperin v. City of New Rochelle, 24 AD3d 768, 2nd Dept., 2005.

A Social Services agency must make a collateral investigation when a recipient established that, after good faith efforts, he or she is unable to provide eligibility verification. 18 NYCRR 360-2.3(a)(1),(2),(3); Matter of Neunie v. Perales, 193 AD2d 681, 2nd Dept., 1993.

Here, the record establishes that the required essential eligibility documentation was originally due on June 24 , 2008. The record also shows that throughout the agency proceedings multiple extensions and adjournments were granted for various reasons, including the lack of eligibility documentation. Although Petitioner states that all information was provided to the local agency, there is nothing in the record to support such assertion and Petitioners have offered no proof that the requested documents were, in fact, submitted to Respondent as they contend. Moreover, there is nothing in the record to establish that Petitioners were unable to obtain the requested financial eligibility information or that Petitioners established good cause for not submitting it. In addition, the record does not show that they notified Respondents of their inability to obtain the documents thereby obligating Respondents to conduct a collateral investigation to determine Petitioners eligibility. Accordingly, the Court finds that the determination of the Respondent Department of Health, made after a hearing that sustained the Respondent Agency's denial of Petitioners application for Medical Assistance benefits, was with a sound basis in reason and in fact and was supported by substantial evidence. Therefore, the Court petition is denied.[*3]

Dated:New City, New York

July 21, 2011

E n t e r :

________________________

HON. ALFRED J. WEINER JSC