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Argument on Lawyers' Access to Home Residents Begins Term

Argument on Lawyers' Access to Home Residents Begins Term

Joel Stashenko Contact All Articles

New York Law Journal

September 07, 2011

ALBANY - The Court of Appeals began its 2011-12 session yesterday by hearing a challenge to the rules imposed by the New York Coalition for Quality Assisted Living regarding visitors to its 33 facilities that advocates claim restrict residents' access to legal representatives.

Jane Bello Burke of O'Connell & Aronowitz in Albany, who represents the coalition (NYCQAL), argued that its guidelines are not in violation of Department of Health Regulations under 18 NYCRR 485.14. Those regulations prohibit public or private health care facility operators from restricting clients' access to "legal representatives" or "legal counsels."

See appellant NYCQAL's brief and reply brief, respondents MFY Legal Service and Coalition of Institutionalized Aged and Disabled's brief, and briefs for amici curiae Disability Advocates and New York Lawyers for the Public Interest and The Center for Constitutional Rights, Goddard Riverside's SRO Law Project, Housing Conservation Coordinators, Legal Services NYC, Make the Road New York and the Urban Justice Center.

"Is the thrust of your guidelines to put yourself between the resident and the visitor?" Chief Judge Jonathan Lippman asked Ms. Burke yesterday.

"Absolutely not," she replied,

She said the rules merely provide for a "confidential and private" place for the facilities 5,000 residents and their visitors to meet.

John M. Aerni of Dewey & LeBouef, who represented MFY Legal Services and the Coalition of Institutionalized Aged and Disabled, countered that it should be irrelevant whether an attorney or a family member or friend is visiting someone in an assisted-living or adult home.

Some patients may have legitimate reasons for not identifying visitors as attorneys, Mr. Aerni argued.

The coalition is "trying to deny access and accountability," Mr Aerni argued in New York Coalition for Quality Assisted Living Inc. v. MFY Legal Services Inc., 148.

Advocates for patients argue that there is an inconsistency between state law and NYCQAL's guidelines prohibiting visitors from wandering through facilities "for the purpose of blanket solicitation" of patients as clients. The rules also allow the operators of facilities to confirm that visitors are attorneys and to deny them access.

Supreme Court Justice Martin Shulman (See Profile) found that the coalition's rules were legal and enforceable, and would not have a chilling effect on the rights of residents to meet with or retain legal counsel.

The Appellate Division, First Department, overruled that determination, holding that the guidelines violated Department of Health regulations. The appeals panel found that state health law requires that visitors "state only the purpose of their visit" and do not have to reveal more to the operators of a facility.

The access to adult home patients was the first matter to be heard of the 22 cases on the Court's schedule this week and next.

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