Calendar Date: April 30, 2018Before: McCarthy, J.P., Lynch, Devine, Clark and Pritzker, JJ.__________Bottar Leone, PLLC, Syracuse (Samantha C. Riggi ofcounsel), for petitioner.Barbara D. Underwood, Attorney General, Albany (Jonathan D.Hitsous of counsel), for Howard A. Zucker and others,respondents.__________Lynch, J.Proceeding pursuant to CPLR article 78 (transferred to thisCourt by order of the Supreme Court, entered in Albany County) toreview a determination of respondent Commissioner of Healthdenying petitioner’s request for approval of a pool lift.In 2011, the Legislature created the New York State MedicalIndemnity Fund (hereinafter the Fund) “to provide a fundingsource for future health care costs associated with birth relatedneurological injuries, in order to reduce premium costs formedical malpractice insurance coverage” (Public Health Law§ 2999-g). Petitioner is the mother of a child (born in 2005)who was enrolled in the Fund in November 2012, having settled amedical malpractice lawsuit for neurological injuries sustainedat birth. In April 2015, petitioner applied to the Fund for preapprovalto purchase and install a “motorized wheelchair to waterpool lift” and accessories for her child (see 10 NYCRR 69-10.6[a]). The family home featured an above-ground pool and hot tubadjacent to a wooden deck attached to the back of the house. Thechild utilizes the pool and hot tub for therapeutic purposes, andthe pool lift was requested to provide a safe means for him toaccess the water. The application included a detailed costestimate of $12,062.The Fund is required to pay “qualifying health care costs,”which include “environmental home modifications (Emods)” and“assistive technology” (10 NYCRR 69-10.1 [z]). The applicationwas initially treated as an Emod, which “means an interior orexterior physical adaptation to the residence . . . that isnecessary to ensure the health, welfare and safety of theenrollee, enables him or her to function with greaterindependence in the community and/or helps avoidinstitutionalization, and has been ordered by a physician” (10NYCRR 69-10.1 [m]). The application included a letter from thechild’s physician, Stephen Eadline, explaining that the devicewas medically necessary for continued home care. At thedirection of the Fund’s third-party administrator, petitionerresubmitted the request as one for “assistive technology”(hereinafter AT), which “means those devices . . . [or] pieces ofequipment . . . determined necessary by a physician for purposesof the enrollee’s habitation, ability to function or safety inhis or her current . . . residence” (10 NYCRR 69-10.1 [b]). Thatrequest was supported by an additional letter from Eadline. Theregulation clarifies that where an item can be defined as both anEmod and AT, it will be considered an Emod (see 10 NYCRR 69-10.1[b]).At the Fund’s direction, a home evaluation was performedand a report, provided in August 2015, recommended approval ofthe pool lift request and that petitioner obtain additional pricequotes for the equipment. The evaluator offered to assist infinding local distributors or links to the recommended products.Despite its earlier guidance, the Fund denied the application,reasoning that the pool lift did not constitute an Emod becauseit did not result in “physical adaptation[s] to the residence.”The Fund added, without elaboration, that the pool lift did “nototherwise constitute qualifying health care costs.” Uponpetitioner’s administrative appeal, which by consent was limitedto a document-based review (see 10 NYCRR 69-10.16 [b]), anAdministrative Law Judge recommended affirming the Fund’s denialof the application as either an Emod or AT. RespondentCommissioner of Health adopted the Administrative Law Judge’srecommendation and denied the application. Petitioner commencedthis CPLR article 78 proceeding to challenge the Commissioner’sdetermination, which Supreme Court transferred to this Courtpursuant to CPLR 7804 (g).1The standard of review is whether the Commissioner’sdetermination was arbitrary and capricious (see CPLR 7803 [4];Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ.Servs., 77 NY2d 753, 757-758 [1991]). With respect to the ATdetermination, the Fund acknowledged that the pool lift requestwas medically necessary (see 10 NYCRR 69-10.10 [e] [1]). TheCommissioner also determined that the pool lift falls within thedefinition of AT. That said, the Commissioner concluded that theapplication was incomplete because petitioner did not submit “anyassessments particularly required” under 10 NYCRR 69-10.10 (e)(2).2 Our review of the record shows otherwise. Medicalnecessity has been conceded, and it is manifest in view of thechild’s significant functional limitations that a pool lift wouldbe beneficial in promoting his ability to engage in water therapyat home. Petitioner has explained, without contradiction, thatthe child is now too tall and heavy for her to manually lift himinto the pool. She acknowledged that they could utilize a poolat a physical therapy center approximately a 20-minute drive fromtheir home, but the logistics of doing so were quite difficultand that facility was only open to the public one day a week.She also noted that the pool lift there did not have a threepointharness needed to safely secure the child and required twoadults to participate in transferring the child into and out ofthe pool.Significantly, the Commissioner’s determination overlooksthe home evaluation report that makes several significantassessments as to the need for and viability of the pool lift.That report explains that carrying the child into the pool or hottub was no longer safe for either the child or the caregiver.The child is nonambulatory and “requires support accessories. . . to position him while seated, secondary to poor trunk andhead control.” For this reason, the report explains that “asimple chair type lift with a seatbelt” would not suffice.Instead, the child needs “a supportive sling to give him adequatetrunk and head support.” The report rejected the use of a Hoyerlift as hazardous and explained that the lift needed to besecured to the deck. The proposed pool lift would attach toseparate sockets secured on the deck adjacent to the pool and thehot tub, allowing petitioner to utilize the lift at bothlocations. It would also allow petitioner, who was often aloneat home with the child, to perform the transfer without theassistance of another adult. Cumulatively, we find this evidenceadequately addresses the assessment criteria set forth in 10NYCRR 69-10.10 (e) (2). We are mindful that the Commissioneralso observed that an applicant is generally required to getthree bids when, as here, the item will cost more than $2,500,but the regulation expressly provides that bids are requiredafter the item has been approved — not as a condition of approval(see 10 NYCRR 69-10.10 [f]). Based on this record, we concludethat the Commissioner’s denial of petitioner’s application asincomplete was arbitrary and capricious.As to the Emod, the Commissioner determined that the poollift did not qualify, reasoning that “[a] pool is not deemed anexterior modification of a residence because it is typicallyoutside the confines of the [home].” This reasoningmischaracterizes the proposal. By definition, Emods includeexterior physical adaptations to a residence, including ramps.As demonstrated in the home evaluation, the backyard deck isattached to and directly accessed from the house through two backdoors.3 We readily recognize the attached deck as part of theresidence, and the proposed modification here is to install twodeck sockets that extend below the deck, i.e., the physicalmodification would be to the deck, not the pool. The pool liftis not directly attached to either the deck or the pool, butpositioned in either socket depending on the intended use ofeither the pool or hot tub. As such, we find that the pool liftqualifies as an Emod and that the Commissioner’s contrary findingwas arbitrary and capricious.McCarthy, P.J., Devine, Clark and Pritzker, JJ., concur.ADJUDGED that the determination is annulled, with costs,and petition granted.ENTER:Robert D. MaybergerClerk of the Court
