Opinion
November 4, 1993
Appeal from the Supreme Court, Albany County (Hughes, J.).
Petitioner, the operator of a nursing home located in Oneida County, commenced this proceeding to annul its Medicaid reimbursement rates for the 1987 through 1991 rate years on the ground that the recalibration regulation (see, 10 N.Y.CRR former 86-2.31) applied by the Department of Health (hereinafter DOH) is arbitrary and capricious (see, New York State Assn. of Counties v Axelrod, 78 N.Y.2d 158). We agree with respondents that this proceeding is barred by the applicable Statute of Limitations. Supreme Court's judgment must, therefore, be reversed and the petition dismissed.
A challenge to DOH's application of the recalibration regulation is a challenge to DOH rate-setting methodology, not to mere computational errors and petitioner was therefore required to commence this proceeding within four months of the 120-day period set forth in 10 NYCRR 86-2.13 (a), which commences with petitioner's receipt of the initial rate computation sheets issued approximately two months prior to the beginning of the respective rate years (see, Matter of Jewish Home Infirmary v Commissioner of N.Y. State Dept. of Health, 190 A.D.2d 197, 199). Petitioner did not commence this proceeding until April 1992, which is clearly long after the four-month Statute of Limitations had run for the 1987 through 1991 rate years challenged by petitioner. Petitioner's attempt to challenge the recalibration regulation in an administrative appeal pursuant to 10 NYCRR 86-2.13 (b), filed in May 1989, did not extend the time within which this proceeding had to be commenced (see, Matter of Sylcox Nursing Home Health Related Facility v Axelrod, 184 A.D.2d 986, 987, lv denied 80 N.Y.2d 761). "DOH did not intend to permit the gamut of complex issues, otherwise appealable pursuant to 10 NYCRR 86-2.13 (a) and 86-2.14, to be raised under 10 NYCRR 86-2.13 (b) and has construed `errors made by the Department of Health' as used in 10 NYCRR 86-2.13 (b) to mean computational errors" (supra, at 988). Based upon this Court's holdings in Matter of Jewish Nursing Home Infirmary v Commissioner of N Y State Dept. of Health (supra) and Matter of Sylcox Nursing Home Health Related Facility v Axelrod (supra), we conclude that this proceeding is time barred.
Yesawich Jr., J.P., Crew III, White and Mahoney, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and petition dismissed.