In Matter of Carmella Barbato v. New York State Dept. of Health (65 A.D.3d 821 [August 21, 2009]) the court stated that in each case, the petitioners filed Article 78 proceedings challenging the respective determinations of the Department of Health which upheld the findings of the local social service agencies which found the petitioners currently ineligible for Medicaid because they transferred assets for less than fair market value during the "look back" period set forth in Social Services Law 366(5)(e). The court found as follows: "Pursuant to personal service agreements (PSAs) between petitioners and their respective caregivers, the caregivers agreed to perform certain personal services for the petitioners for the remainder of each petitioner's lifetime in exchange for a bulk transfer of assets to the caregiver. The parties to those agreements stipulated that the amount transferred constituted the fair market value of the personal services, which was determined by multiplying the hourly cost of the services, which ranged from $ 12 to $ 15 an hour, by both the estimated number of hours of work that they would be performed and the life expectancy of each petitioner. The life expectancy of each petitioner was determined based upon a chart published by the New York State Department of Health". The PSA involving Carmella Barbato ... provides that the caregiver is to perform services for "at least" 15 hours per week, while the PSAs in the four remaining proceedings provide for services for those petitioners on an "as needed" basis. All of the PSAs provide that there is to be no refund to the estate of any of the five petitioners who dies before the end of his or her projected life expectancy." The Barbato court found that substantial evidence supported the determination in each proceeding that the transfer of assets for services to be rendered between the time of the determinations of the respective Departments of Social Services through the remainder of the lifetime of each petitioner was for less than fair market value. The court stated that: "With respect to the proceedings involving PSAs containing the aforementioned "as needed" language, these petitioners cannot demonstrate that the transfer of assets for prospective services was for a fair market value, because there is no basis on which to conclude that the transfer of a specific amount of assets for services that may or may not be rendered is for fair value. Moreover, given the absence of a refund provision in any of the PSAs in question, the possibility remains that a caregiver will receive a windfall in the event that the respective petitioner fails to meet his or her life expectancy, and it thus cannot be said that the subject transfers were for fair market value. We conclude, however, that the determinations fail to account for the fair market value of services rendered between the date on which each PSA was executed and the date on which the respective determinations were made." "In our view, substantial evidence supports the determinations that services provided by caregivers that are duplicative of services afforded petitioners by the nursing facilities in which they reside are non-compensable for the purpose of calculating the relevant periods during which petitioners are ineligible for medical assistance benefits (see Gabrynowicz, 37 AD3d 464, 465, 829 N.Y.S.2d 606; see generally Estate of Barnett v. Department of Health & Human Servs., 2006 WL 1668138 [Me Super 2006]; cf. Gold v. United Health Servs. Hosps., 95 NY2d 683, 690-691, 746 N.E.2d 172, 723 N.Y.S.2d 117,; Matter of Chase v. New York State Dept. of Social Servs., 252 AD2d 612, 613, 675 N.Y.S.2d 203, lv denied 92 N.Y.2d 813, 704 N.E.2d 227, 681 N.Y.S.2d 474). Inasmuch as service logs kept by the caregivers for each petitioner are included in the record, the aforementioned duplicative services may be identified, and the services provided distinguished from those yet to be provided. Moreover, the fair market value of the non-duplicative services performed may be determined and used in calculating each of the periods during which petitioners are ineligible for medical assistance benefits"(Id at 821). In Barbato the court remitted the matters to the respective Departments of Social Services to determine the eligibility of each petitioner for Medicaid between the date on which each personal services agreement was executed and the date on which the respective determinations were made following recalculation of the period set forth in Social Services Law 366 (5). The court further noted that the determination of the issue whether certain services are duplicative of those provided by the nursing facilities may be facilitated by reference to the standards for services in such facilities set forth in 10 NYCRR 415.1 through 415.27.