IN RE: Application of Gussie SCHLOSSBERG (2000)

Determination of respondent New York State Department of Health dated January 12, 2000, which, after a fair hearing, affirmed respondent New York City Department of Social Services' determination denying petitioner's application for 24-hour continuous split-shift care, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Marcy Friedman, J.], entered April 21, 2000), dismissed, without costs.

 Respondents' determination to continue 24-hour sleep-in care, but to deny petitioner's request for 24-hour continuous split-shift care, is based on substantial evidence and is not arbitrary and capricious (see, Curry v. Wing, 277 A.D.2d 37, 716 N.Y.S.2d 6, decided herewith).   The agency's determination, resting as it does on its interpretation of its own regulations and the legislation under which it functions, is entitled to deference (see, Matter of Howard v. Wyman, 28 N.Y.2d 434, 438, 322 N.Y.S.2d 683, 271 N.E.2d 528).   Further, the applicable regulations do not require that the agency follow a treating physician's recommended amount of services (Kuppersmith v. Dowling, 93 N.Y.2d 90, 688 N.Y.S.2d 96, 710 N.E.2d 660).   Although petitioner claims that she was not, prior to her fair hearing, given constitutionally adequate notice of the disputed determination, our review of respondents' Notice of Decision dated September 23, 1999 discloses that said Notice satisfactorily apprised petitioner of the legal burden she would face if she challenged the determination at a fair hearing.

MEMORANDUM DECISION.