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1
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OPINION
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EXTRACTED KEY WORDS
PREVAILING PARTY PETITIONER FEE AWARD LABORATORY LITIGATION RESPONDENT MEANING COURT SOCIAL SERVICES CPLR ARTICLE MATTER YORK APPEALS PURSUANT AMENDED REGULATION INTERPRETATION COMMISSIONER EQUAL ACCESS JUSTICE ACT INDEPENDENT LABORATORIES BILL JACKET PLAINTIFF GOVERNMENT REASONABLENESS APPELLANT ACTING COMMISSIONER PARTIALLY PREVAILING USC APPELLATE DIVISION |
IN THE MATTER OF NEW YORK STATE CLINICAL LABORATORY ASSOCIATION INC.,
APPELLANT, v. GREGORY KALADJIAN, AS ACTING COMMISSIONER OF THE DEPARTMENT OF
SOCIAL SERVICES OF THE STATE OF NEW YORK, RESPONDENT.
85 N.Y.2d 346, 649 N.E.2d 811, 625 N.Y.S.2d 463 (1995).
February 23, 1995
3 No. 14 (1995 NY Int. 047)
Decided February 23, 1995
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Thomas G. Smith, for Appellant.
Daniel Smirlock, for Respondent.
CIPARICK, J.:
The issue presented on this appeal is whether a partially prevailing
petitioner may recover attorney's fees from the State pursuant to CPLR
article 86, the Equal Access to Justice Act (State EAJA). This
petitioner is not entitled to a fee award because it is not a
"prevailing party" within the meaning of the State EAJA and the
State's position in this litigation was substantially justified.
In October 1991, respondent Department of Social Services amended 18
NYCRR 505.7, changing the Medicaid payment methodology for certain
diagnostic laboratory tests performed by independent laboratories. 18
NYCRR 505.7(g)(4) provides:
Payment for laboratory services provided by independent
laboratories will be made only for individually ordered tests. No
payment will be made for tests ordered as groupings or combinations
of tests or for individual tests ordered on a laboratory order form
issued by an independent laboratory which also contains an order
for one or more groups or combinations of tests. Each test must be
separately ordered by a qualified practitioner as defined in
paragraph (b)(3) of this section.
Prior to the amendment, independent laboratories were entitled to
receive payment for tests ordered by physicians on pre-printed
laboratory requisition forms containing "panels" or "profiles." Panels
are groups of tests conducted on a single specimen, and profiles are
groups of tests performed for the purpose of assessing the function of
a particular body organ or tissue. Although laboratory tests could be
SNIPPETS:
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