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COA rules for attorney access to nursing homes

By: Todd Etshman//October 25, 2011

COA rules for attorney access to nursing homes

By: Todd Etshman//October 25, 2011

Rules promulgated by an assisted living nonprofit organization that restrict access by attorneys and advocates to residential care home residents are inconsistent with New York State Department of Health regulations, the New York State Court of Appeals said in a 5-2 decision last week.

As the court explained in the majority opinion of New York Coalition for Quality Living (NYCQAL) v. MFY Legal Services, Inc. et al. (no. 148), NYCQAL drafted guidelines in which facility representatives operated as intermediaries between resident advocates and residents. The guidelines prohibited advocates from accessing the facility unless their purpose was to visit a particular resident, and restricted access to those who failed to comply with the guidelines.

Although the rules were crafted with input from the Department of Health and the New York State Commission on Quality of Care and Advocacy for Persons with Disabilities, the court found the NYCQAL rules conflicted with New York Code Rules and Regulations, and in particular 18 NYCRR 485 .14(g) restricting access to those reasonably believed to be endangering the safety of residents.

“It cannot reasonably be argued that every violation of NYCQAL’s guidelines, no matter how tangential such violations may be to the safety of residents of NYCQAL facilities, would ‘directly endanger’ the safety of those residents,” the court said in upholding the Appellate Division’s holding that the guidelines were unenforceable and in conflict with existing Department of Health regulations.”

NYCQAL sued defendants MFY Legal Services, Inc. and the Coalition of Institutionalized Aged and Disabled, Inc. (CIAD) for violating the NYCQAL rules and failing to specify who their attorneys and advocates were visiting. MFY and CIAD representatives said access to residents is critical to reforming the industry.

“Given the long history of problems in the adult home industry and recent exposés about the serious issues in group homes for the developmentally disabled, it’s more important than ever that people with disabilities have unfettered access to organizations that can help them,” said Geoff Lieberman, CIAD’s executive director.

MFY and CIAD attorneys and advocates regularly visit the homes to train tenants on their rights and to address complaints residents make about substandard conditions and violations of their rights, MFY said in a press release.

In her brief for the Court of Appeals, NYCQAL attorney Jane Bello Burke, of O’Connell Aronowitz in Albany, said the Appellate Division, First Department, “inappropriately elevated the right to visitor access over right to privacy and security in the resident’s own home.”

“[I]t is the resident’s right, not the visitor’s, to decide whether to hold a visit in his or her room,” she said.

In her brief, Burke said the purpose of the regulations were “to give residents a meaningful choice about whether to meet with a visitor” and there was no evidence the NCCQAL guidelines denied advocates the opportunity to conduct training.

“I appreciate the need to protect vulnerable people from abuse by an operator who may be more interested in saving money than in providing good care; but I can also understand that the activities of patient advocates with a strong sense of their mission could be burdensome and disruptive,” said Judge Robert Smith in a written dissent.

Judge Smith said the Department of Health, not the courts, should decide the issue and find a balance between the two sides.

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