The opinion of the court was delivered by: Smith, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
We hold that violation of a regulatory deadline for rendering a decision after a fair hearing does not require the State to pay Medicaid benefits to a person not otherwise entitled to them.
Petitioner, an elderly woman living in a skilled nursing facility, applied to the Onondaga County Department of Social Services (DSS) for Medicaid benefits. DSS rejected her application, concluding that she had resources and income available to her exceeding the amounts permitted for Medicaid recipients. On June 14, 2007, petitioner exercised her right under Social Services Law § 22 (1) to appeal to the Department of Health (DOH), and demanded the "fair hearing" to which she was entitled by that statute.
An applicable DOH regulation, 18 NYCRR 358-6.4 (a), says that "definitive and final administrative action must be taken promptly, but in no event more than 90 days from the date of the request for a fair hearing." That regulation was not complied with in this case. The fair hearing was not held until September 13, 2007, 91 days after the fair hearing demand, and DOH's "Decision After Fair Hearing" was not issued until the 190th day, December 21, 2007.
When the decision came, it was favorable to petitioner. A representative of the Commissioner of Health decided that assets subject to a trust agreement entered into by petitioner should not count against her for Medicaid eligibility purposes, and that she was entitled to receive benefits. DSS asked the Commissioner to review that decision, as DOH regulations permit (18 NYCRR 358-6.6 [a] ). On April 4, 2008, the 295th day after the request for a fair hearing, a designee of the Commissioner issued an "Amended Decision After Fair Hearing" upholding DSS's position and denying petitioner benefits.
Petitioner brought this CPLR article 78 proceeding to annul the Commissioner's amended decision and reinstate the original one. Petitioner does not claim that the original decision was correct, or the amended one wrong. Her argument is that the Commissioner's violation of the time limit imposed by the DOH regulation renders the amended decision invalid.
Supreme Court granted the petition. The Appellate Division, with two Justices dissenting, reversed (Matter of Dickinson v Daines, 68 AD3d 1646 [4th Dept 2009]). Petitioner appeals to us as of right, pursuant to CPLR 5601 (a), and we now affirm.
The opinions in the courts below, and the parties' briefs, debate whether the 90-day limit contained in 18 NYCRR 368-6.4 (a) is "mandatory" or only "directory" -- words that have often been used, by our Court and others, in characterizing time limits and other provisions of law relating to the conduct of government business. In this case, the simple choice between "mandatory" and "directory" does not adequately describe all possible ways of applying the regulation. We agree with the Appellate Division majority, however, that the DOH regulation at issue was not "mandatory" as we have used the term, and that its violation does not warrant nullifying the Commissioner's amended decision.
In Matter of Grossman v Rankin (43 NY2d 493 ), we considered a statute requiring the Civil Service Commission to decide within four months of the occurrence of a vacancy whether the vacant position had been properly classified as exempt. We held the time limit to be "merely directory" (id. at 501). While we said that the Commission "should seek to comply in a timely fashion" with the statute's "guidelines," we also said:
"The courts have repeatedly held that unless the language used by the Legislature shows that the designation of time was intended as a limitation on the power of the body or officer, the provision is directory rather than mandatory" (id.).
In Matter of King v Carey (57 NY2d 505, 512-13 ), by contrast, we rejected an argument that a 90-day time limit was "merely directory." We recognized the rule that
"prescriptions in regard to the time, form and mode of proceeding by public functionaries are generally directory, as they are not of the essence of the thing to be done, but are given simply with a view to secure system, uniformity and dispatch in the conduct of public business" (id.; internal quotation omitted). We concluded, however, that the Legislature that enacted the time limit at issue in King "considered time of the essence" (id. at 514). There can be no doubt that King involved an exception ...