        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

47
TP 11-01540
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GORSKI, JJ.


IN THE MATTER OF ALAYNA GODFREY, BY HER PARENT
AND NATURAL GUARDIAN MICHELLE GODFREY,
PETITIONER,

                    V                             MEMORANDUM AND ORDER

NIRAV R. SHAH, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF HEALTH AND PHILLIP NOSTRAMO,
COMMISSIONER’S DESIGNEE, RESPONDENTS.


NEIGHBORHOOD LEGAL SERVICES, INC., BUFFALO (DIANA M. STRAUBE OF
COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE
OF COUNSEL), FOR RESPONDENTS.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [Joseph R.
Glownia, J.], entered June 22, 2011) to review a determination of
respondents. The determination denied petitioner’s request for a
Bantam Stander standing device with options.

     It is hereby ORDERED that the determination is unanimously
annulled on the law and facts without costs and the petition is
granted.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
to challenge the determination made following a fair hearing that
denied her request seeking approval to purchase a Bantam Stander
standing device with options (Bantam). Petitioner is a seven-year-old
Medicaid recipient with multiple disabilities who is wheelchair-bound
and unable to stand unassisted. The pediatrician and physical
therapist requested approval for the purchase of a Bantam, and the
request was denied on the ground that petitioner failed to establish
that the Bantam was the least costly medical device that would meet
her medical needs. Following a fair hearing, the Administrative Law
Judge (ALJ) affirmed the denial of petitioner’s request.

     We agree with petitioner that the request for the Bantam should
have been approved because the Bantam is medically necessary. As the
intended recipient of the Bantam, petitioner was “responsible for
establishing that . . . [it was] medically necessary to prevent,
diagnose, correct or cure a medical condition and that any specific
                                 -2-                            47
                                                         TP 11-01540

statutory or regulatory requirements for prior approval of the care,
services or supplies [were] met” (18 NYCRR 513.3 [a]). According to
New York State Department of Health regulations, “[n]ecessary to
prevent, diagnose, correct or cure a condition means that [the]
requested medical . . . supplies would: meet the recipient’s medical
needs; reduce the recipient’s physical or mental disability; restore
the recipient to his or her best possible functional level; or improve
the recipient’s capacity for normal activity” (18 NYCRR 513.1 [c]).
The regulations further provide that “[n]ecessity to prevent,
diagnose, correct or cure a condition must be determined in light of
the recipient’s specific circumstances and the recipient’s functional
capacity to use or make use of the requested care, services or
supplies and appropriate alternatives” (id.).

     At the fair hearing, petitioner established that the Bantam would
allow her to engage in weight bearing, would assist with her reflux,
bowel and bladder health, and would increase her bone density.
Petitioner also established that there were no less costly
alternatives that would provide those precise benefits while also
enabling petitioner to be transferred safely to and from her
wheelchair. Consequently, petitioner met her burden of establishing
that the Bantam was necessary to restore the recipient to her best
possible functional level (see id.). Moreover, the testimony of the
physical therapist that petitioner is at risk for being dropped and
injured without the use of the Bantam “is entitled to significant
weight . . . and cannot be outweighed solely by the opinions of
non-medical personnel or persons not within the same medical
profession as the ordering or treating practitioner” (18 NYCRR 513.6
[e]). In addition, she testified that the Bantam would increase
petitioner’s ability to lead a more normal life (see 18 NYCRR 513.6
[a] [3] [iv]). In view of the evidence presented by the parties at
the fair hearing, we cannot agree with the ALJ’s determination that
the Bantam is not the least costly device that is medically necessary
for petitioner. Thus, because the determination is not supported by
the requisite substantial evidence, it must be annulled (see Matter of
Sorrentino v Novello, 295 AD2d 945; Matter of Gartz v Wing, 236 AD2d
890; Matter of Dobson v Perales, 175 AD2d 628; cf. Matter of Coffey v
D’Elia, 61 NY2d 645).




Entered:   January 31, 2012                    Frances E. Cafarell
                                               Clerk of the Court
