OPINION OF THE COURT
This appeal challenges regulations and procedures of the New York State Department of Social Services (DSS) concerning home care services authorized under the Medicaid program. Petitioners sued DSS and the New York City Human Resources Administration, arguing that the regulation governing the treating physician’s order for home care services (18 NYCRR 505.14 [b] [3] [i] [a] [3]) is arbitrary and capricious. They also seek a judicially created presumption in favor of the treating physician’s estimate regarding the number of hours of home care services required. We conclude that the regulation is not arbitrary and capricious, and that adoption of a “treating physician’s rule” in this context is unwarranted. Therefore, the order of the Appellate Division should be affirmed.
I. The Home Care Program: The Federal Scheme
Title XIX of the Social Security Act (42 USC § 1396
et seq.),
popularly referred to as the Medicaid Act, authorizes grants to
According to Federal regulations, “personal care services” are (1) authorized by a physician in accordance with the recipient’s plan of treatment; (2) provided by an individual who is qualified to provide the services and not a member of the recipient’s family; and (3) furnished in a home, and, at the State’s option, in another location (42 CFR 440.167). These services primarily involve “hands on” assistance with physical dependency needs such as bathing, dressing and taking medications (see, Medicare & Medicaid Guide [CCH] ¶ 45,624, at 55,279).
The Act authorizes the States to implement plans for medical assistance which “include reasonable standards * * * for determining eligibility for and the extent of medical assistance under the plan which * * * are consistent with the objectives of [the Act]” (42 USC § 1396a [a] [17]). Thus the statute confers broad discretion on participating States to determine the extent of services provided; the State standards need only be reasonable and consistent with the objectives of the Act.
II. The Home Care Program: State Law
In New York, personal home care services are furnished in accordance with the Federal mandate (Social Services Law § 365-a [2] [e]). Pursuant to State regulations implementing the statute, home care services may be authorized only after an extensive review process. The services must be (1) essential to maintaining the client’s health and safety; (2) ordered by the attending physician; (3) based on an assessment of the client’s needs and the appropriateness and cost effectiveness of the services; (4) provided by a qualified person in accordance with a plan of care; (5) supervised by a registered professional nurse; and (6) if required for more than 60 continuous days, provided in accordance with certain fiscal assessment procedures (see generally, 18 NYCRR 505.14 [a] [1] et seq.).
The primary focus of this appeal concerns 18 NYCRR 505.14 (b) (3) (i)
(a) (3),
the regulation governing the treating
After a physician files the form, the local district must conduct a detailed review of the case, including social, nursing and home care assessments, an assessment of the appropriateness and cost-effectiveness of other types of home services or arrangements, and a fiscal assessment, if appropriate (18 NYCRR 505.14 [b] [2]). An independent medical review by a physician designated by the local district director or a physician under contract with the local social services department (an “affiliated physician”) also may be required (18 NYCRR 505.14 [b] [4]). The affiliated physician does not make the final determination of the level of care required by an individual client. State regulations restrict that determination to the local director or his or her designee (18 NYCRR 505.14 [b] [4] [ii]).
III. The Instant Litigation
Petitioner Jennie Kuppersmith, a Medicaid recipient, instituted this combined CPLR article 78 proceeding and declaratory judgment action in 1986 challenging the administration and implementation of the home care program by the State and City of New York. Kuppersmith ultimately prevailed in her own dispute concerning the number of hours of personal care she should receive following an administrative hearing. Other petitioners intervened and Supreme Court granted class certification in June 1987.
In 1992, DSS promulgated 18 NYCRR 505.14 (b) (3) (i) (o) (3) and petitioners moved in Supreme Court to enjoin implementation of this regulation. They argued that greater weight should be given to the assessment of the treating physician in determining the extent of personal care services required. They also moved for leave to file a supplemental complaint and for partial summary judgment on their claims regarding the weight to be given to the treating physician’s opinion. Follow
Petitioners appealed, and the Appellate Division affirmed, holding that the challenged regulation was not “arbitrary, capricious, or manifestly contrary to the statute” and that “neither the Medicaid laws nor due process mandates the imposition of a ‘treating physician’s rule’ as to the number of hours of personal care services” (
It is well-settled that a State regulation should be upheld if it has a rational basis and is not unreasonable, arbitrary, capricious or contrary to the statute under which it was promulgated
(New York State Assn. of Counties v Axelrod,
While this standard is limiting, it does not render the judiciary powerless. An agency has no authority to create rules and regulations without a statutory predicate either express or implied
(Matter of Bates v Toia, supra,
at 464). That would be tantamount to legislation by administrative fiat, and, by definition, irrational
(Matter of Harbolic v Berger,
Viewed from this perspective, we hold that the regulation prohibiting physicians from recommending the number of hours for home care services falls within the ambit of “genuine reasonableness and rationality”
(New York State Assn. of Counties v Axelrod, supra,
at 166). The statutory predicate for the regulation in question is rooted in the broad and unambiguous grant of affirmative authority to New York pursuant to the
The United States Department of Health and Human Services — the agency responsible for administering and interpreting Medicaid laws — noted that the objective of the home care program is “to provide States maximum flexibility in tailoring their Medicaid programs to meet the needs of recipients while also setting guidelines so that States that choose to offer the personal care services benefit furnish quality services in an effective manner” (Medicare & Medicaid Guide [CCH] 45,624, at 55,279). States therefore have broad discretion to choose the proper mix of amount, scope and duration limits on coverage as long as care and services are provided in the “best interests of the recipients”
(Alexander v Choate,
There is nothing in the record to indicate that the State’s home care program vitiates these interests. To the contrary, the program takes into consideration the complex, multifaceted reality of providing personal care services to those in need. The regulations mandate a local social services district to examine many factors in establishing the number of hours of personal care services. Assessments by a variety of experts are required, including the treating physician, a social services worker, and a nurse. If necessary, input from an affiliated physician is required as well. Additionally the regulation requires local districts to consider whether informal care givers, such as the recipient’s family members and friends, can assist in providing home care for the recipient.
A home care assessment therefore requires complementary analyses and opinions from individuals with different fields of expertise. Contrary to petitioners’ argument, personal home care services are much more than purely medical determinations. This point is reflected in the regulations themselves, which categorize personal home care services into three distinct levels of care. Level I services are limited to performing nutritional and environmental support functions (e.g., light housekeeping and preparing meals). Level II services include assistance with personal care functions (e.g., dressing and bathing) in addition to services provided under Level I. Level III services include the aforementioned tasks and simple health-related tasks (e.g., performing measurements and tests,
Petitioners’ argument for the implementation of a “treating physician’s rule” also is misplaced. Petitioners argue that their health and safety were jeopardized when defendants refused to give weight to the recommendations of their treating physicians regarding home care services, even when these recommendations were consistent with, and supported by, nursing and social work assessments. Nonetheless, given that the home care program involves more than a single medical determination, deference to a treating physician’s opinion is unwarranted. Thus petitioners’ attempt to analogize between the home care program and Social Security disability determinations, which involve medical judgments, is misguided
(see, Schisler v Heckler,
787 F2d 76;
Schisler v Sullivan,
Petitioners’ remaining arguments are without merit.
Accordingly, the order of the Appellate Division should be affirmed, without costs.
Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick and Rosenblatt concur.
Order affirmed, without costs.
Notes
These services differ markedly from those provided pursuant to the home health services program (18 NYCRR 505.23), which encompasses strictly health-related services that are “medically necessary,” including nursing services, physical therapy, occupational therapy, or speech pathology and audiology services.