Decided September 10, 1992 Appeal from (3d Dept: 179 A.D.2d 989) MOTIONS FOR LEAVE TO APPEAL GRANTED OR DENIED
In direct contrast to the regulatory definition of the other hospital peer groups (see, 10 NYCRR 86-1.54 [i]), rather than setting forth the criteria for inclusion in the academic medical centers group, the regulations specifically name the hospitals comprising the group ( 10 NYCRR 86-1.54 [i] [2] [i]). Thus, petitioners' challenge is directed not to their grouping under a regulation, but to DOH's very promulgation of the regulation, an inappropriate subject of an administrative rate appeal (see, Matter of University Hosp. v New York State Dept. of Health, 179 A.D.2d 989, lv denied 80 N.Y.2d 756). We also agree with Supreme Court's conclusion that petitioners failed to satisfy their burden of making an evidentiary showing that their experiences differ from those of the other facilities in the academic medical centers group such that their classification with those hospitals is irrational (see, Matter of Blase v Axelrod, 146 A.D.2d 867; see also, Matter of Severino v Ingraham, 44 N.Y.2d 763; cf., Matter of Bassett Hosp. v Axelrod, 156 A.D.2d 826). As correctly argued by respondents, petitioners have failed to show that, once neutralized by the wage equalization factor and power equalization factor (see, 10 NYCRR 86-1.54 [j]), there are real, significant differences in costs between the upstate and downstate hospitals in the academic medical centers peer group (see, Matter of Field Home-Holy Comforter v Commissioner of N.Y. State Dept. of Health, 200 A.D.2d 927, 929-930).
usion in that particular group was irrational (Matter of Blase v. Axelrod, supra, at 868). This petitioner has failed to do. It is apparent from the record that petitioner's wage and fringe benefit rates were set by a collective bargaining agreement entered into with Local 1199 while it was still located in Bronx County and that petitioner's wage expenditures were governed by the terms of that agreement following its relocation to Westchester County. As a result, petitioner did indeed experience wage expenditures that were higher than some comparable facilities included in the Westchester County group. It does not appear, however, that petitioner's wage expenditures were the highest incurred by comparable facilities in its peer group, and petitioner has failed to tender sufficient additional evidence to substantiate its claim that its labor costs are so unique and/or vastly dissimilar from its peers that inclusion in the Westchester County regional group is irrational (see supra; cf., Matter of University Hosp. v. New York State Dept. of Health, 179 A.D.2d 989, lv denied 80 N.Y.2d 756; compare, Matter of Cabrini Med. Ctr. v Axelrod, 116 A.D.2d 834). Petitioner's remaining arguments have been examined and found to be lacking in merit. Mikoll, J.P., Mercure, White and Yesawich Jr., JJ., concur.
Here, DOH is charged with certifying Medicaid reimbursement rates that are "reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities." New York Public Health Law ยง 2807(3) (emphasis added); see also, Matter of Univ. Hosp. v. New York State Dept. of Health, 179 AD2d 989, 990 (3rd Dept. 1992), lv. denied 80 NY2d 756; Matter of Cortland Nursing Care Ctr. v. Whalen, 46 NY2d 979, 980 (1979). Any rate-setting actions of DOH, being quasi-legislative in nature, may not be annulled except upon a "compelling showing that the calculations from which they derived were unreasonable."