6076. ANNA KONSTANTINOV, ETC., Petitioner-Appellant-res, v. RICHARD F. DAINES, M.D., ETC. Respondents-Respondents-ap — Bellin & Associates LLC, White Plains (Aytan Y. Bellin of counsel), for appellant-res — Michael A. Cardozo, Corporation Counsel, New York (Norman Corenthal of counsel), for Richard F. Daines, res-res — Eric T. Schneiderman, Attorney General, New York (Simon Heller of counsel), for Robert Doar, res-res — Order and judgment (one paper), Supreme Court, New York County (Joan A. Madden, J.), entered July 29, 2010, dismissing the first, second, third and fourth causes of action, and, as to the fifth, sixth, seventh and eighth causes of action, directing respondents to draft and implement regulations that will outline the steps a Medicaid applicant must take to request immediate temporary personal care services, and that will provide for performance of an expedited assessment, including a physician’s assessment, social assessment and/or nursing assessment, and that thereafter, will provide for expedited review of the application for such services, and, once the procedure for obtaining immediate temporary personal care services is in place, to notify Medicaid applicants of the availability of this form of medical assistance, unanimously modified, on the law, to reinstate the first and second causes of action and to declare, upon those causes of action, that, pursuant to 42 USC §1396a(a)(3), as further defined by 42 CFR 431.244(f), the final administrative action on a Medicaid claim must be taken within 90 days from the claimant’s request for a fair hearing, even where the matter has been remanded to the local social services district, unless one of the exceptions provided in State Medicaid Manual §2902.10 is applicable, and otherwise affirmed, without costs.
Supreme Court correctly found that the federal statute and implementing regulation governing hearings and decisions about Medicaid claims create a right to a final administrative determination within 90 days after a request for a hearing is made. 42 USC §1396a(a)(3) mandates that a state plan for medical assistance “provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness.” This statute creates a right to a fair hearing that can be enforced through a private action under 42 USC §1983 (see Shakhnes ex rel Shakhnes v. Berlin, 689 F3d 244, 254 [2d Cir 2012]). 42 CFR 431.244(f) (ii) provides that the agency “must take final administration action … [o] rdinarily, within 90 days from” the date of the request for the hearing (see also 18 NYCRR 358-6.4[a]). The 90-day deadline set forth in the regulation defines the scope of the §1983 cause of action to enforce 42 USC §1396a(a) (3) by “flesh[ing] out” the content of the right to a hearing (see Shakhnes, 689 F3d at 254). Similarly defining the scope of the right to a hearing, the Centers for Medicare and Medicaid Services State Medicaid Manual (SMM), promulgated by the federal Department of Health and Human Services, interprets the regulation to mean that the 90-day time limit must be adhered to “except where the agency grants a delay at the appellant’s request, or when required medical evidence necessary for the hearing can not be obtained within 90 days” (SSM §2902.10). This interpretation by the agency of its own regulation warrants significant deference (see Fishman v. Daines, 743 F Supp 2d 127, 143-144 [ED NY 2010]).
