The penalty provisions of the Department of Labor Manual constitute a rule or regulation within the contemplation of this provision (State Administrative Procedure Act § 102 [a] [i]). "[W]here a guideline is a fixed, general principle to be applied by the [agency] without regard to other facts and circumstances relevant to the regulatory scheme of the statute being administered," it constitutes a rule or regulation required to be filed with the Department of State (Matter of Trustees of Masonic Hall Asylum Fund v. Axelrod, 174 A.D.2d 199, 204). However, where the agency renders its determination on a case-by-case analysis of the facts, the guidelines are not required to be published as a rule or regulation (see, Matter of Roman Catholic Diocese v. New York State Dept. of Health, 66 N.Y.2d 948, 951; Matter of Duflo Spray-Chem. v. Jorling, 153 A.D.2d 244, 250).
The Department of Health acted within its legislative authority in issuing guidelines recommending an appropriate standard of care for office-based surgery. ( Matter of Roman Catholic Diocese of Albany v. New York State Dept. of Health, 66 NY2d 948; Matter of Sturman v. Ingraham, 52 AD2d 882; Matter of Connell v. Regan, 114 AD2d 273; Matter of New York City Tr. Auth. v. New York State Dept. of Labor, 88 NY2d 225; Matter of Trustees of Masonic Hall Asylum Fund v. Axelrod, 174 AD2d 199; Matter of Sheehan v. Ambach, 136 AD2d 25, 72 NY2d 804; Spensieri v. Lasky, 94 NY2d 231; Diaz v. New York Downtown Hosp., 99 NY2d 542; Gallo v. Linkow, 255 AD2d 113; Masucci v. Feder, 196 AD2d 416.) Boies, Schiller Flexner LLP, Albany ( George F. Carpinello and Martin G. Deptula of counsel), for respondent.
Thus, although the guidelines specify numerical formulas for calculating the ultimate amount of the penalty, they do not establish "a rigid, numerical policy invariably applied across-the-board to all claimants without regard to individualized circumstances or mitigating factors" ( Schwartfigure, supra, at 301). Rather, "they encompass both fixed and variable factors unique to a facility to be considered * * * on a case-by-case analysis" ( Matter of Trustees of Masonic Hall Asylum Fund v Axelrod, 174 A.D.2d 199, 204). The penalty guidelines do not dictate the result; the ultimate amount of the penalty is dependent on inspectors' independent exercise of their professional judgment.
Petitioners seem to suggest that imposition of such habitat impairment test, standing alone, amounts to formal rulemaking. A close reading of the language of the habitat impairment test reveals, however, that it does not constitute a formal rule because it “encompass[es] both fixed and variable factors unique to” a particular industrial activity, with those factors to be “considered ... on a case-by-case” basis (Matter of Trustees of Masonic Hall & Asylum Fund v. Axelrod, 174 A.D.2d 199, 204, 578 N.Y.S.2d 690 [1992]; accord Matter of New York City Tr. Auth. v. New York State Dept. of Labor, 88 N.Y.2d 225, 230, 644 N.Y.S.2d 463, 666 N.E.2d 1336 [1996] ). Thus, the extension of the boundaries to formulate the Hudson Highlands habitat amounts to a routine program change and not formal rulemaking.
In addition, petitioner failed to object to the content of the documents before the Administrative Law Judge, thereby failing to preserve the "sloppiness" issue for this Court's review (see, Matter of Henry v. Wetzler, 82 N.Y.2d 859, 862, cert denied 511 U.S. 1126). In any event, the analyst/investigator testified concerning these documents and, therefore, the determination as to the weight afforded them is within the sole province of the Administrative Law Judge (see, Matter of Trustees of Masonic Hall Asylum Fund v. Axelrod, 174 A.D.2d 199, 202). We therefore find these arguments to be an insufficient basis upon which to disturb respondent's determination.
It is well settled that "only a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme * * * constitutes a rule or regulation required by N Y Constitution, article IV, § 8 to be filed in the office of the Department of State" ( Matter of Roman Catholic Diocese v. New York State Dept. of Health, 66 N.Y.2d 948, 951; see, Matter of Cordero v Corbisiero, 80 N.Y.2d 771, 772-773). Should the agency, however, "render its determination on a case-by-case analysis of the facts, the guidelines are not required to be published as a rule or regulation" ( Matter of New York City Tr. Auth. v. New York State Dept. of Labor, 211 A.D.2d 432, 433, lv granted 86 N.Y.2d 705; see, Matter of Trustees of Masonic Hall Asylum Fund v Axelrod, 174 A.D.2d 199, 204-205). Our review of the record, including the guidelines at issue, reveals that the criteria utilized by DOH to evaluate whether petitioner performed an accurate case mix assessment indicates full compliance with standards typically utilized in statistical analysis to determine whether a difference in results should be deemed significant ( see, IV [A] Handbook of Applicable Mathematics, Statistics, at 220 [1984]; VNR Concise Encyclopedia of Mathematics 603 [2d ed 1975]; see generally, Carroll v Ortiz, 122 Misc.2d 164, 175). Since the criteria used by DOH to evaluate whether the difference in results were statistically significant was coupled with an individualized review of criteria that were factually specific to a particular patient, we conclude, as did Supreme Court, that the audit involved a consideration of both fixed and variable factors and thus did not have to be promulgated as a rule ( see, Matter of Trustees of Masonic Hall Asylum Fund v. Axelrod, supra, at 204-205).
Legal authority interpreting CAPA and SAPA "have said that a rule or regulation' is a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers' " (Cubas v. Martinez, 8 NY3d 611, 870 N.E.2d 133 [2007], quoting Matter of Roman Catholic Diocese of Albany v. New York State Dept. of Health, 66 N.Y.2d 948, 498 N.Y.S.2d 780 [1985] ; see also Council of City of New York v. Dep't of Homeless Servs. of City of New York, 22 NY3d 150, supra ). However, a guideline is not considered a "rule" or "regulation" where "they encompass both fixed and variable factors unique to a facility to be considered on a case-by-case analysis [internal quotation marks omitted]" (New York City Transit Auth. v. New York State Dep't of Labor, 88 N.Y.2d 225, 644 N.Y.S.2d 463 [1996], quoting Matter of Trustees of Masonic Hall & Asylum Fund v. Axelrod, 174 A.D.2d 199, 578 N.Y.S.2d 690 [3 Dept., 1992] ). Accordingly, assuming, arguendo, that SAPA or CAPA applied to the Accountability Handbook, the handbook would be considered a guideline and not a rule.
Legal authority interpreting CAPA and SAPA "have said that a rule or regulation' is a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers'" (Cubas v. Martinez, 8 NY3d 611, 870 N.E.2d 133 [2007], quoting Matter of Roman Catholic Diocese of Albany v. New York State Dept. of Health, 66 NY2d 948, 498 N.Y.S.2d 780 [1985]; see also Council of City of New York v. Dep't of Homeless Servs. of City of New York, 22 NY3d 150, supra). However, a guideline is not considered a "rule" or "regulation" where "they encompass both fixed and variable factors unique to a facility to be considered on a case-by-case analysis [internal quotation marks omitted]" (New York City Transit Auth. v. New York State Dep't of Labor, 88 NY2d 225, 644 N.Y.S.2d 463 [1996], quoting Matter of Trustees of Masonic Hall & Asylum Fund v. Axelrod, 174 AD2d 199, 578 N.Y.S.2d 690 [3 Dept., 1992]). Accordingly, assuming, arguendo, that SAPA or CAPA applied to the Accountability Handbook, the handbook would be considered a guideline and not a rule.