Harbeck v. Blum

78 A.D.2d 726, 432 N.Y.S.2d 540, 1980 N.Y. App. Div. LEXIS 13265

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Ulster County) to review a determination of the respondent Commissioner of New York State Department of Sociál Services, made after a fair hearing, which affirmed the decision of the respondent Ulster County Department of Social Services denying petitioner’s application for approval to purchase an air conditioner and humidifier. Petitioner, a 28-year-old recipient of public assistance, is a chronic asthmatic, and sought to obtain an air conditioner and a humidifier under the Medicaid program, as items of necessary medical supplies (Social Services Law, § 365-a). Authorization to purchase such equipment was denied by the local agency’s medical director (cf. 18 NYCRR 505.3), who subsequently testified at a fair hearing that his decision was based on a medical determination. It was his view that air conditioning was not necessary for the treatment of asthma and, in many instances, was contraindicated. Further, that while a humidifier might provide some relief, the possibilities of locating a vaporizer near petitioner had not been sufficiently explored as an alternative. Although the medical director had never examined petitioner (see Matter of Denise R. v Lavine, 39 NY2d 279, 282), his opinions were not directly refuted by expert proof or by a showing that different considerations applied to petitioner’s specific condition. At most, there was a conflict in the evidence over what was medically necessary for him and, on that basis, it was rational for respondent to accept the medical director’s decision. Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Sweeney, Kane, Main and Casey, JJ., concur.