Calendar Date: November 16, 2017
D. Hetherington, Empire Justice Center, Rochester, for
Greenberg Traurig, LLP, Albany (Cynthia E. Neidl of counsel),
for Independent Health Association, Inc., respondent.
T. Schneiderman, Attorney General, Albany (Julie M. Sheridan
of counsel), for Howard Zucker and another, respondents.
Before: McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Hartman, J.), entered
May 11, 2016 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to
CPLR article 78, to review a determination of the Office of
Temporary and Disability Assistance finding respondent
Independent Health Association, Inc. in compliance with a
fair hearing decision regarding petitioner's health care
is an adolescent child who receives medical assistance
through respondent Independent Health Association, Inc.
(hereinafter IHA), a Medicaid-managed care provider.
Petitioner resides with his grandmother, who is also his
adopted mother. In February 2015, petitioner's private
duty nursing services ceased. IHA tried to find a substitute
provider for petitioner but was unable to do so. In May 2015,
IHA denied petitioner's request for private duty nursing
services. Petitioner thereafter requested a fair hearing
(see 18 NYCRR 358-3.5), which was conducted before
the Office of Temporary and Disability Assistance
(hereinafter OTDA), a designee of the Department of Health
(hereinafter DOH). In July 2015, OTDA issued a fair hearing
decision reversing IHA's denial of services. OTDA
directed IHA "to provide immediate relief to
[petitioner] by providing private duty nursing services to
[petitioner] by whatever means [IHA] deems available."
IHA was also ordered to "comply immediately" with
August 3, 2015 compliance complaint, petitioner advised OTDA
that the nursing services directed by the fair hearing
decision had not yet been provided. OTDA conducted an inquiry
and subsequently determined that IHA was in compliance with
the fair hearing decision. OTDA closed its inquiry on August
13, 2015. Petitioner sent another compliance complaint, dated
August 26, 2015, informing OTDA that "IHA has still not
put nursing services in place." In this regard,
petitioner's grandmother stated in an affidavit that
petitioner was receiving only part of the authorized nursing
services. On October 21, 2015, OTDA issued a notice of
compliance resolution noting that, based upon a report
submitted by IHA, petitioner's complaint of noncompliance
had been resolved. 
November 2015, petitioner commenced this CPLR article 78
proceeding against respondents alleging that IHA did not
provide any private duty nursing services from February 27,
2015 through October 5, 2015, that IHA provided only partial
nursing services from October 6, 2015 to November 7, 2015 and
that nursing services had ceased since November 8, 2015.
Accordingly, petitioner seeks a writ of mandamus compelling
IHA to immediately comply with the directives of the July
2015 fair hearing decision and compelling OTDA and DOH to
enforce such decision. In May 2016, Supreme Court dismissed
the petition on the basis that it was moot and that it was
not ripe for judicial review. Petitioner appeals.
undisputed that at the time petitioner commenced this
proceeding, he was entitled to receive private duty nursing
services. It is also undisputed that the July 2015 fair
hearing decision directed IHA to provide these services
immediately and by whatever means IHA deemed necessary. What
petitioner and IHA sharply contest is whether IHA satisfied
the fair hearing decision's mandate. IHA maintains that
it acted diligently by authorizing the requisite private duty
nursing services and attempting to secure agencies that could
provide them for petitioner. Meanwhile, petitioner claims
that the services were not provided or provided only in part.
Even if we agree with petitioner that Supreme Court erred in
dismissing the petition as moot, we are constrained to
conclude that the appeal is moot.
the petition was filed and after Supreme Court issued its
judgment, petitioner received private duty nursing services.
While the parties still disputed whether the provision of
these services complied with the fair hearing decision, in
December 2016, IHA terminated petitioner's private duty
nursing services due to safety concerns. The notice advising
petitioner of the termination stated, "It [was] no
longer safe for IHA to authorize [private duty nursing]
services for [petitioner] because it [was] not safe for
nurses to assist him in his home."  The termination
notice also advised petitioner of his right to request a fair
hearing, which petitioner exercised. Before a fair hearing
was held, however, petitioner accepted alternative services
and withdrew the fair hearing request. Given these events,
the July 2015 fair hearing decision is no longer in effect.
Accordingly, inasmuch as a decision on the merits of
petitioner's appeal will not result in any immediate or
practical consequences to the parties, the appeal is moot
(see Matter of Ruby Weston Manor v Commissioner of Health
of the State of N.Y., 107 A.D.3d 1116, 1118 ).
we concluded that this appeal fell within the exception to
the mootness doctrine (see Matter of Hearst Corp. v
Clyne, 50 N.Y.2d 707, 714-715 ), because
petitioner withdrew his fair hearing request with respect to
the termination of his nursing services by IHA in December
2016, the petition would be barred due to his failure to
exhaust administrative remedies (see generally Watergate
II Apts. v Buffalo Sewer Auth., 46 N.Y.2d 52, 57
). Furthermore, although the safety reasons proffered
by IHA in December 2016 for terminating petitioner's
private duty nursing services were substantially similar to
those forming the basis of IHA's May 2015 denial of
services, requiring petitioner to exhaust all administrative
remedies under the circumstances of this case would not be
futile. The July 2015 fair hearing decision noted that the
May 2015 denial was improper, in part, because IHA's
"determination that [petitioner's] behavior
present[ed] a risk to himself or his caregivers [was] not
supported by the record." In other words, a ...