Johnson v. Office of Health Systems Management

—Determination of respondent Office of Health Systems Management dated November 14, 1996, which denied approval for private nursing services at petitioner’s home, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, Bronx County [Lottie Wilkins, J.], entered June 13, 1997) dismissed, without costs. Petitioner failed to seek a fair hearing challenging the agency’s determination, as had been previously done successfully, and thus failed to exhaust available administrative remedies (see, Matter of Stern v Krauskopf, 110 AD2d 536). While exhaustion is not required where further administrative steps would be futile in light of a firm statement of agency policy (see, Lehigh Portland Cement Co. v New York State Dept. of Envtl. Conservation, 87 NY2d 136, 140-141; Heileman Brewing Co. v New York State Liq. Auth., 237 AD2d 203) or where only an issue of law is involved (see, Apex Air Frgt. v O’Cleireacain, 210 AD2d 7, lv denied 86 NY2d 712; Matter of Herberg v Perales, 180 AD2d 166, 169), here only factual issues are implicated by the provider’s allegations. Concur — Sullivan, J. P., Rosenberger, Rubin and Williams, JJ.