NY State Court Rejects Vital Protections For

Assisted Living Residents

“Win” by Provider Industry Lobbyists Removes Requirement to Hire Professional Care Staff, Sharply Reduces Standards for Care of Alzheimer’s Patients & Frail Elderly

 

 

NEW YORK, September 18, 2009: In two long awaited decisions, Albany County (New York) Supreme Court judge Michael Lynch has ruled invalid key components of New York State’s assisted living regulations.  The cases were brought by two adult home industry trade associations: “New York Coalition for Quality Assisted Living, Inc.” and “Empire State Association of Assisted Living, Inc.” and several individual adult home facilities against Richard F. Daines, MD, in his capacity as Commissioner of the NY Department of Health.  They both sought to weaken regulatory safeguards and consumer protections in the assisted living regulations promulgated in 2008.  These regulations put into effect the state’s assisted living law, which passed in 2004 following years of mounting scandals in the adult home industry in New York State.

“It is disturbing that the cynical arguments made by the two industry associations that represent some of the most egregious providers in the state were ratified by the court,” said Richard Mollot, LTCCC’s executive director. “I was shocked that the court simply accepted the industry’s contention that a facility should not be required to have a licensed nurse working in any capacity on its staff when the facility chooses to go beyond standard assisted living licensure and obtain special certification to provide housing and care to special, high needs populations such as people with dementia and the very frail elderly who are ‘aging in place.’  Given the particular vulnerability and frailty of these people, it is hard to imagine how this requirement can be characterized as ‘arbitrary.’ Certainly, it comports with the language of the 2004 law, which clearly states: ‘In approving an application for special needs certification, the department shall develop standards to ensure adequate staffing and training in order to safely meet the needs of the resident.’” [NY State Public Health Law Section 4655 [5]]

In addition to nullifying the requirement for at least one professional caregiver on staff if a facility becomes certified to provide special care for those with dementia or enhanced needs, the court removed the structural and environmental standards in the regulations (though it found them to be “well motivated and in the interests of assisted living residents…”), nullified requirements pertaining to providing notice to a resident of a change in fees, and nullified provisions to ensure the safe administration and storage of medications.

“It is outrageous that the very people who are supposed to care for those elders and disabled who need assisted living fought so hard to remove their protections,” said Cynthia Rudder, LTCCC’s director of special projects, who represents consumers on the state’s Assisted Living Task Force.  “It’s been over five years since the state finally passed a decent assisted living law, and now we are back to square one.  In the meantime, our elderly loved ones continue to be unprotected when the assisted living community that they call home fails to provide promised care or quality of life.  I am also appalled that State Senator Maziarz (Niagara, Orleans & Monroe Counties), State Senator Golden (Brooklyn) and their cohorts backed the providers on these issues.  What about their constituents?  This is not just about business convenience and profits, as these legislators seemed to think and noted for the court. This is about people’s lives.”

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LTCCC is a non-profit organization dedicated to protecting the rights and welfare of long term care consumers in all settings, including nursing homes, assisted living facilities and the community, through policy research, systemic advocacy and public education. For more information on this and other long term care issues, visit our website: www.ltccc.org.

Links to Copies of the Rulings:

Empire State Association of Assisted Living, Inc.  Lawsuit
New York Coalition for Quality Assisted Living, Inc.  Lawsuit

 

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