
    In the Matter of Bruce Marten, Appellant, v Barbara DeBuono, as Commissioner of New York State Department of Health, Respondent.
    [709 NYS2d 852]
   Proceeding pursuant to CPLR article 78, inter alia, to review a determination of the New York State Department of Health, dated June 19, 1998, which, after a hearing, denied the petitioner’s application for approval to rent a Continuous Positive Airway Pressure machine, with necessary accessories.

Adjudged that the petition is granted, on the law, without costs or disbursements, to the extent that the determination is annulled, the application for approval to rent a Continuous Positive Airway Pressure machine, with necessary accessories, is granted, and the petition is otherwise denied.

A Medicaid recipient must apply for approval from the Department of Health (hereinafter the DOH) to obtain certain medical equipment (see, 18 NYCRR part 513). If an applicant’s request is denied, he or she is entitled to a fair hearing. Among the issues which may be reviewed at the hearing are whether the requested equipment is “medically necessary and appropriate” for the applicant’s medical needs and whether “other adequate and less expensive alternatives have been explored” (18 NYCRR 513.8 [b] [1], [2]).

In denying the petitioner’s application for a Continuous Positive Airway Pressure machine, the DOH concededly applied the wrong criteria in evaluating whether the machine was necessary and appropriate for his medical needs. The guideline relied upon by the DOH in making its determination was no longer in effect. Further, its conclusion that alternative treatments might be available was not supported by the record. The determination of the DOH was not supported by substantial evidence and, therefore, must be annulled (see, CPLR 7803 [4]). Based upon our review of the record, we find that the equipment requested was medically necessary and appropriate and the petition is granted to the extent indicated. Mangano, P. J., S. Miller, Altman and Goldstein, JJ., concur.  