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ELCOR HEALTH SERVS v. NOVELLO

100 N.Y.2d 273 (2003)

794 N.E.2d 14

763 N.Y.S.2d 232

In the Matter of ELCOR HEALTH SERVICES, INC., Appellant, v. ANTONIA NOVELLO, as Commissioner of Health of the State of New York, et al., Respondents.

Court of Appeals of the State of New York.

Decided June 26, 2003.

Attorney(s) appearing for the Case

Harter, Secrest & Emery LLP, Rochester (Thomas G. Smith of counsel), for appellant.

Eliot Spitzer, Attorney General, Albany (Kathleen M. Treasure, Caitlin J. Halligan, Daniel Smirlock and Nancy A. Spiegel of counsel), for respondents.

O'Connell and Aronowitz, Albany (Cornelius D. Murray and James A. Shannon of counsel), for New York State Health Facilities Association, amicus curiae.

Chief Judge KAYE and Judges SMITH, ROSENBLATT, GRAFFEO and READ concur.

OPINION OF THE COURT

CIPARICK, J.

The primary question presented by this appeal is whether deference should be afforded to the Department of Health's interpretation of 10 NYCRR 86-2.30 (i) (27) to require "actual improvement" by a patient before a residential health care facility can receive reimbursement for restorative therapy. We conclude that the Department's interpretation is not arbitrary and capricious...

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