NIAGARA FALLS MEMORIAL MED. CENTER v. AXELROD

Order unanimously affirmed, without costs. Memorandum: We reject appellants hospitals' contention that they have been deprived of due process as a result of the delay by the Commissioner of Health in determining their applications for review of retroactive readjustment of Medicaid payments for 1980 based on volume adjustments ( 10 NYCRR 86-1.12). "[D]ue process is flexible and calls for such procedural protections as the particular situation demands" ( Morrissey v. Brewer, 408 U.S. 471, 481; see Schweiker v. McClure, ___ US ___, 50 USLW 4406; Mathews v. Eldridge, 424 U.S. 319, 334-335). Under the circumstances here, the dictates of due process do not require that appellants be afforded an opportunity to be heard prior to computation of retroactive volume adjustments; these adjustments are based solely on mechanical mathematical application of formulas set forth in 10 NYCRR 86-1.12 and involve no factual determination. Nor must a hearing be held prior to commencement of recoupment (see Mathews v. Eldridge, supra; Clove Lakes Nursing Home v. Whalen, 45 N.Y.2d 873); if appellants are not promptly afforded their rights pursuant to 10 NYCRR 86-1.12 following commencement of recoupment, their remedy would be a CPLR article 78 proceeding to compel the department to comply (see Clove Lakes Nursing Home v. Whalen, supra, pp 875-876).