From Casetext: Smarter Legal Research

Auster v. New York State Department of Social Services

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 15, 1991
177 A.D.2d 1031 (N.Y. App. Div. 1991)

Opinion

November 15, 1991

Appeal from the Supreme Court, Monroe County, Curran, J.

Present — Doerr, J.P., Denman, Green, Balio and Davis, JJ.


Determination unanimously confirmed without costs and petition dismissed. Memorandum: Respondent Department determined that petitioner violated its Medicaid regulations (specifically, 18 NYCRR 515.2 [b]; 516.1, 537.4) by submitting claims for payment for optometric examinations he performed at the rate of $12 per examination, rather than at the rate of $5 per examination, the latter being the rate allowed for a "salaried optometrist". Respondent directed petitioner to pay restitution in the sum of $28,669.48. In this CPLR article 78 proceeding, petitioner seeks to annul that determination on the grounds that respondent's construction of the term "salaried optometrist" was arbitrary and capricious and that its findings were not supported by substantial evidence.

"`[I]t is well settled that the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld'" (Matter of Bernstein v. Toia, 43 N.Y.2d 437, 448, rearg denied 43 N.Y.2d 950; Matter of Howard v. Wyman, 28 N.Y.2d 434, 438, rearg denied 29 N.Y.2d 749; see also, Ostrer v. Schenck, 41 N.Y.2d 782, 786; Matter of New York City Tr. Auth. v. New York State Pub. Employment Relations Bd., 147 A.D.2d 574, amended on other grounds 156 A.D.2d 689). A "salaried optometrist" is defined in 18 NYCRR 537.4 (n 3) as "a qualified optometrist employed by either a retail optical establishment or dispensing optician or a non-profit health service corporation". The record reveals that petitioner is a salaried employee of Penn Optical Vision Center, Inc.; that he was employed to manage the downtown Rochester facility; and that three-fourths of the Medicaid bills submitted by petitioner were for retail optical sales. Based principally upon this evidence, respondent determined that Penn Optical was a "retail optical establishment" ( 18 NYCRR 537.4 [a]) and that petitioner was employed by Penn Optical. Petitioner maintained that he was a "self-employed optometrist" ( 18 NYCRR 537.3 [b]) entitled to payment at the rate of $12 per examination because he had a 35% ownership interest in his corporate employer. Respondent rejected this contention because the holders of the remaining 65% interest could decide at any time to terminate petitioner's employment, and thus, petitioner was not "self-employed". In our view, respondent's construction of its own regulation is reasonable and should not be disturbed.


Summaries of

Auster v. New York State Department of Social Services

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 15, 1991
177 A.D.2d 1031 (N.Y. App. Div. 1991)
Case details for

Auster v. New York State Department of Social Services

Case Details

Full title:In the Matter of STEPHEN C. AUSTER, Petitioner, v. NEW YORK STATE…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 15, 1991

Citations

177 A.D.2d 1031 (N.Y. App. Div. 1991)
578 N.Y.S.2d 316

Citing Cases

David Q. v. Schoharie Cnty. Dep't of Soc. Servs.

The father failed to advance that argument before Family Court, instead proposing to adjourn a hearing on his…