Opinion
March 24, 1986
Appeal from the Supreme Court, Queens County (Kassoff, J.).
Order and judgment affirmed, insofar as appealed from, without costs or disbursements.
The petitioner seeks reimbursement for actual, out-of-pocket expenses incurred in obtaining necessary home care services for the period of January 5, 1983 to February 23, 1983, on the ground that the respondent local agency failed to expedite and timely process his application for home care services. The record is clear that the respondent local agency did fail to properly process the petitioner's application, and that reimbursement is, therefore, required. The sole question here concerns the rate at which reimbursement is to be made, that is, whether the petitioner is entitled to recover his actual out-of-pocket expenses, or whether his recovery is limited to the established Medicaid rate (see, 18 NYCRR 360.27). Special Term determined that the delay, although unjustified, did not mandate reimbursement at other than the established payment rate. We agree that the petitioner's recovery must be limited to reimbursement at the established rate, but for a different reason.
Under earlier decisions of this court, the petitioner would have been entitled to reimbursement of actual, out-of-pocket expenses (see, e.g., Matter of Lustig v. Blum, 80 A.D.2d 558; Matter of Bryson v. Blum, 97 A.D.2d 514). However, apparently in response to that line of cases, the respondent Perales has amended the applicable regulations to specifically provide that reimbursement may be made directly to the recipient, or the recipient's representative, but only at "the rate or fee provided by Medicaid at the time the service was rendered" (18 NYCRR 360.17 [a] [4]). This amendment was effective in January 1985, subsequent to the determination of Special Term, but while the instant appeal was pending.
As a general rule, in the absence of special circumstances, an appellate court must apply the law as it exists at the time of its decision (see, e.g., Matter of Alscot Investing Corp. v Incorporated Vil. of Rockville Centre, 64 N.Y.2d 921, affg 99 A.D.2d 754; Matter of Temkin v. Karagheuzoff, 34 N.Y.2d 324, 329; Matter of Gardiner v. Lo Grande, 83 A.D.2d 614, affd 60 N.Y.2d 673). No special circumstances exist in the instant case warranting departure from the general rule; this is not a situation involving, for example, detrimental reliance by the petitioner or bad faith on the part of the respondents (see, e.g., Matter of Alscot Investing Corp. v. Incorporated Vil. of Rockville Centre, supra; see also, Matter of Temkin v. Karagheuzoff, supra; Matter of Faymor Dev. Co. v. Board of Stds. Appeals, 45 N.Y.2d 560), and consequently, we are constrained to hold that the petitioner's reimbursement is limited to the established Medicaid rate at the time the service was rendered. Mangano, J.P., Rubin, Eiber and Kooper, JJ., concur.