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
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
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
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
"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
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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