Opinion
December 12, 1995
Appeal from the Supreme Court, New York County, Lewis Friedman, J., Edward Lehner, J., Milton Williams, J., Harold Tompkins, J.
All four of these appeals are from determinations upon petitions brought under article 78 which sought to overturn administrative decisions which had held that petitioners, all former foster parents, did not have standing to seek additional payments based on their claim that children who had formerly been in their care were improperly designated as not having special needs.
In two of the cases, the Supreme Court found that petitioners did have standing and vacated the administrative decisions to the contrary. In the other two, the Supreme Court found that there was no standing and confirmed the administrative decisions.
Upon our review, we find that we are in agreement with the well-reasoned decisions of Justice Williams in Matter of Graham v Bane and Justice Tompkins in Matter of Vera v Dowling, both of whom found that, since the subject children were no longer in their care, petitioners were without standing to retroactively seek higher payments based on their argument that the children should have been classified as having special needs. There is nothing irrational about respondents' interpretation of the New York statutory and regulatory scheme insofar as it classifies the foster child, rather than the foster parent, as the "recipient" of benefits who is therefore entitled to a hearing challenging denial (Social Services Law § 22; 18 NYCRR 358-3.1), and classifies the foster parent as a provider of services and not therefore personally entitled to such a hearing. Moreover, we reject petitioners' argument that 42 U.S.C. § 671 (a) (12), which requires that the State afford a fair hearing to "any individual whose claim for benefits * * * is denied or is not acted upon with reasonable promptness", requires that petitioners herein receive a hearing. Although this statute may protect the right to a hearing of foster parents who claim benefits during their tenure as foster parents ( see, Timmy S. v Stumbo, 916 F.2d 312), it does not apply herein, since at the time petitioners sought higher payments they were no longer the foster parents of these children.
Motion to strike brief of the City granted.
Concur — Sullivan, J.P., Ellerin, Rubin, Kupferman and Asch, JJ. [ See, 160 Misc.2d 907.]