64 A.D.2d 802 | N.Y. App. Div. | 1978
—Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of respondent denying petitioner’s application for approval of construction of additional skilled nursing care facilities. Petitioner, Fair-field Nursing Home, is a skilled nursing facility located in the Riverdale section of Bronx County. In May, 1975, petitioner applied to respondent Commissioner of Health for approval, pursuant to article 28 of the Public Health Law, of its plan to add 12 beds to its facility. Respondent denied the application on the basis of a lack of public need (see Public Health Law, § 2802, subd 2). Petitioner requested a hearing. After taking testimony, respondent issued an order, dated March 15, 1977, denying the application on the same ground as previously stated. The hearing officer’s report, issued simultaneously, reached the conclusion that the rejection of the application, based as it was on a prescribed formula, was arbitrary. He recommended rehearing and reconsideration of the application. Respondent’s order explicitly rejected these findings. It is the Bureau of Facility Planning that determines the need for new facilities. The bureau applies a numerical formula, the "Hill-Burton formula”, to project needed facilities in each county. Respondent applied this formula in the instant case and, due to the excess of beds in Bronx County, rejected the application. Faced with a remarkably similar problem, the Second Department stated in Matter of Sturman v Ingraham (52 AD2d 882, 885): "the petitioner’s application was denied not on the basis of the commissioner’s review of the facts and merits of her application, but on the basis of applying to the petitioner’s application a preset, rigid numerical policy (not contained in the statute) which foredoomed the application. That procedure precluded a fair review and resulted in an arbitrary determination (see Matter of Swalbach v State Liq. Auth., 7 NY2d 518). * * * approval or disapproval hinges upon which side of a county line an applicant plans his facility. Obviously, the determination should be based on the needs of an area and the facts of the particular case, and not solely upon rigid or artificial geographical segmentations.” The error in respondent’s method lies in its reliance on one factor, a statistical county-wide "need” formulation, foreclosing consideration of a wide array of factors which even respondent must acknowledge are relevant. Respondent’s "guidelines”, although of dubious validity since they have not been properly filed (see Matter of Sturman v Ingraham, supra), suggest several factors which should be considered in evaluating public need, some of which