ALBANY, N.Y., Oct. 21 (Reuters) - New York state's top court has struck down rules restricting attorney access to residents in assisted living facilities.

In a 5-2 decision released Thursday, the Court of Appeals affirmed an appellate ruling that says a set of strict visitation policies adopted by the non-profit New York Coalition for Quality Assisted Living (NYCQAL), which operates 33 assisted-living facilities in New York, are inconsistent with state regulations.

"The Appellate Division had a sound basis for concluding that the guidelines, which call for facility representatives to serve as intermediaries between advocates and the residents and prohibit advocates from walking through the facility without the intention of visiting with a particular resident, conflict with the regulation and the (Department of Health's) interpretation of them," the court wrote.

Rules promulgated by the state Department of Health prohibit assisted living facilities from denying residents "legal representation."

In 2007, NYCQAL crafted a set of guidelines that allowed facility staff to act as intermediaries between attorneys and residents, required attorneys to notify staff of the resident being visited, and authorized facilities to restrict access to those who violated the policies.

The following year, NYCQAL sued MFY Legal Services, a non-profit group that provides free civil legal assistance, and the Coalition of Institutionalized Aged and Disabled (CIAD), another non-profit that advises residents of adult homes on their rights. NYCQAL claimed MFY and CIAD were violating the 2007 policies by among other things refusing to give the names of the residents they were visiting.

In 2008, NYCQAL moved for summary judgment, arguing that the policies were consistent with state regulations and protected patients -- particularly those suffering from mental illnesses -- from unwanted advances by visiting attorneys.

The trial court sided with NYCQAL and said the polices would not have a "chilling effect" on the legal rights of residents.

Last year, the First Appellate Division reversed, finding that state law only required visitors to identify themselves, and not the people they were visiting.

NYCQAL CALLS ON STATE TO CLARIFY RULES

The Court of Appeals on Thursday echoed the First Department's decision, and rejected NYCQAL's argument that visiting attorneys pose a potential threat to residents.

"It cannot reasonably be argued that every violation of NYCQAL's guidelines would 'directly endanger' the safety of those residents," the court wrote in an unsigned ruling.

Chief Judge Jonathan Lippman and Judges Carmen Ciparick, Victoria Graffeo, Eugene Pigott and Theodore Jones joined in the majority.

In a dissent, Judge Robert Smith, joined by Judge Susan Read, said he understood both sides of the argument, and the thorny issue should be left to the Health Department to decide.

"While (MFY's) objections are based on legitimate concerns, (NYCQAL's) members have legitimate concerns also, and the balance to be struck between the two should be decided by the Department, not by the courts," Smith wrote.

In an interview, Jane Bello Burke of O'Connell and Aronowitz, the attorney for NYCQAL, said, that the guidelines "were an attempt to synthesize the Health Department regulations in a way that a person at the front desk could understand." Burke called on the state to clarify existing rules in order to strike a balance between residents' rights to legal counsel and privacy.

"It is incumbent upon the Department of Health to clarify what adult homes can and cannot do in the area of visitor access," she said.

A Department of Health spokesman did not immediately return a request for comment.

John Aerni, who argued for MFY and CIAD, said the policy inappropriately allowed the homes to inject themselves into confidential matters in which NYCQAL could have ended up as a defendant in a lawsuit.

Attorneys and advocates often visit homes to confer with clients on specific cases or as part of educational programs, but do not approach residents out of the blue, according to CIAD Executive Director Geoff Lieberman.

"We are often invited to attend meetings, and while we're there, people will approach us for assistance," Lieberman said.

The case is New York Coalition for Quality Assisted Living, Inc. v. MFY Legal Services, Inc., et al, New York State Court of Appeals No. 148.

For NYCQAL: Jane Bello Burke of O'Connell and Aronowitz.

For MFY: John Aerni of Dewey & LeBoeuf.

(Reporting by Dan Wiessner)

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