Retirement System Medical Board may rely on its own expertise to determine an applicant's eligiblility for benefits

The Appellate Division sustained the New York City's Retirement System's Medical Board's [Board] determination that a New York City Police Officer [Applicant] was not permanently disabled from the performance of Applicant's duties as a police officer as a result of his "obstructive sleep apnea". The court had concluding that the Board's decision was not arbitrary and capricious." 

Citing Matter of Borenstein v New York City Employees' Retirement System, 88 NY2d 756, the court said that the Medical Board "properly based its conclusion on its examination" of the Applicant and his medical records, which provided some credible evidence to support its findings. 

Further, the court opined that the New York Police Department's Medical Division's finding that Applicant's obstructive sleep apnea adversely affected the Applicant's performance of his duties as a police officer was not binding on the Board.*

Further, noted the Appellate Division, Applicant had not undergone available treatment options to alleviate his symptoms. 

* N. B. A Social Security Administration’s disability determination is not binding on a New York State public retirement system [See https://www.nycourts.gov/reporter/3dseries/2016/2016_00782.htm].

Click HEREto access the Appellate Division's decision posted on the Internet.

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In an article published by STAT, a journal about health, medicine, and the life sciences, captioned Replace the failure of Medicare Advantage with ‘Medicare Part F’,  Steve Cohen, an attorney at Pollock Cohen, a litigation-oriented law firm based in New York City, opines "The shortcomings of the current Medicare system must be addressed ASAP. A good place to start is recognizing what hasn’t worked — and why — in order to develop a revamped system of medical care that both effectively and economically serves the growing senior population."

Click the URL set out below to access the article posted on the Internet:

https://www.statnews.com/2022/11/15/replace-medicare-advantage-failure-with-medicare-part-f/

Concerning Medicare and Medicare Advantage

In an article published by STAT, a journal focusing on health, medicine, and the life sciences, captioned Replace the failure of Medicare Advantage with ‘Medicare Part F’,  Steve Cohen, an attorney at Pollock Cohen, a litigation-oriented law firm based in New York City, opines "The shortcomings of the current Medicare system must be addressed ASAP. A good place to start is recognizing what hasn’t worked — and why — in order to develop a revamped system of medical care that both effectively and economically serves the growing senior population."

Click the URL set out below to access this STAT article posted on the Internet:

https://www.statnews.com/2022/11/15/replace-medicare-advantage-failure-with-medicare-part-f/

 

Recovering attorneys' fees and costs incurred in a New York State's Freedom of Information Law CPLR Article 78 action

A "substantially prevailing" party in a CPLR Article 78 involving New York State's Freedom of Information Law may claim "attorneys' fee and costs" where the information demanded was withheld by the custodian of the records and the party seeking the information was required to seek judicial assistance to obtain them.*

In this action the Appellate Division, citing Matter of Dioso Faustino Freedom of Info. Law Request v City of New York, 191 AD3d 504, ruled that where the custodian of the records [Custodian] had "no reasonable basis for denying access" to the records sought pursuant to FOIL, it was undisputed that Petitioner substantially prevailed" as Custodian, during the pendency of this proceeding, "disclosed the records sought in the FOIL request with limited redactions."

A "substantially prevailing" party in a CPLR Article 78 involving New York State's Freedom of Information Law [FOIL] may claim "attorneys' fee and costs" where the information demanded was withheld by the custodian of the records and the party seeking the information was required to seek judicial assistance to obtain the documents or records demanded.

Significantly, the court opined "the voluntariness of [the] disclosure is irrelevant to the issue of whether [Petitioner] substantially prevailed".

As Custodian had conceded the issue of whether it had a reasonable basis for denying access in a prior FOIL proceeding between the same parties before "this court", which was limited to one of the documents at issue here, a medical screening manual, the Appellate Division remanded the matter to Supreme Court for a determination of Petitioner's attorneys' fees and other litigation costs.

* Public Officers Law §89[4][c][ii].

Click HEREto access the decision of the Appellate Division posted on the Internet.

An administrative regulation, or an amendment to such regulation, will be sustained if not arbitrary or irrational

The Independent Insurance Agents and Brokers of New York, Inc., et al., [Petitioners], challenged the validity of the recently amended Insurance Regulation 187 (11 NYCRR 224), which provides protections to consumers engaging in life insurance and annuity transactions. 

The Court of Appeals held that "[b]ecause the Department of Financial Services [DFS] appropriately exercised its authority to create a carefully considered and clear regulation, it found no basis to invalidate the regulation." 

The court explained that: 

1. An administrative regulation will be upheld only if it has a rational basis, and is not unreasonable, arbitrary or capricious, citing New York StateAssn. of Counties v Axelrod, 78 NY2d at 166. 

2. "If a regulation is to be nullified, the challenger must establish that it is so lacking in reason for its promulgation that it is essentially arbitrary", citing Kuppersmith v Dowling, 93 NY2d 90.

3. "So long as the regulation is 'genuine[ly] reasonable and rational' it should be upheld—courts should not scrutinize the 'policy considerations underlying the' regulation”, citing New York StateAssn. of Counties v Axelrod, 78 NY2d 158.

The Court of Appeals then opined "The goal of the amendment is straightforward and supported by the administrative record, and the amendment is plainly tailored to achieve those objectives [and] DFS reasonably concluded that the 'best interest' framework was needed to protect consumers, and [Petitioners] cannot show that the amended regulation is 'essentially arbitrary'".

In the words of the court, "[e]ach of [Petitioners] arguments for invalidating the regulation is unavailing. Petitioners have fallen woefully short of their burden to sustain a facial due process challenge on vagueness grounds, and the extensive administrative record supporting the amended regulation refutes their alternative challenges."

Click on the URL shown below to access the text of the decision of the Court of Appeals.

 https://www.nycourts.gov/reporter/3dseries/2022/2022_05917.htm