
    In the Matter of Nina Kane, Petitioner, v Henry G. Parry, Jr., as Commissioner of the Orange County Department of Social Services, et al., Respondents. In the Matter of Minette Boerum, Petitioner, v Henry G. Parry, Jr., as Commissioner of the Orange County Department of Social Services, et al., Respondents.
    Supreme Court, Orange County,
    July 28, 1975
    
      
      Leona Freisinger for petitioners. John D. Bright for Henry G. Parry, Jr., respondent. Louis J. Lefkowitz, Attorney-General, for Abe Lavine, as Commissioner of the State Department of Social Services, respondent.
   John W. Sweeny, J.

In the above-entitled article 78 proceedings, consolidated for the purpose of this decision, petitioners seek a judgment (a) declaring that said petitioners’ Medicaid benefits for nursing home care are being discontinued by respondents without notice or opportunity for a fair hearing as required by 18 NYCRR 358.4(a)(4), (b) directing respondents to afford petitioners the opportunity to have a fair hearing, (c) enjoining respondents from removing the petitioners from Doan’s Nursing Home pending the determination of said fair hearing, and (d) directing the State Department of Social Services to continue reimbursing the local agency for its expenditures on behalf of petitioners.

The court acknowledges the fact that technically each petitioner should be entitled to a fair hearing since their Medicaid benefits are effectively being terminated without the benefit of a hearing. However, respondents suggest that the issues involved herein are matters exclusively within the jurisdiction of the Federal courts because the underlying rationale for respondents’ termination of payments is the discontinuance of financial reimbursement from the Federal Government due to the nursing home’s decertification as a title XIX provider (US Code, tit 42, ch 7, subch XIX).

As this court views the issues in question, it appears that petitioners do not seek any judgment declaring that Federal reimbursement should be continued. Although it is a relevant consideration, respondents’ obligations to provide medical assistance is independent of the Federal law and regulations with respect to Federal financial participation. The State’s own administrative letter (74 ADM-172) acknowledges that payments to decertified nursing homes after a certain time period may be made but that they will be "non-reimbursable”.

Accordingly, given the exigencies of a particular recipient’s circumstances, the continuation of payments to a decertified institution might be necessary to maintain the life of said recipient.

Therefore, the petitions in question are granted to the extent that the court hereby directs respondents to provide fair hearings for petitioners and those similarly situated in Doan’s Nursing Home forthwith, to consider the appropriateness of the proposed action in light of all the circumstances involved. Pending final administrative disposition of said proceedings, respondents shall be enjoined from removing said petitioners, and the local agency shall not terminate their medical assistance to petitioners.  