REPORT: June 2006

NYSNA joins lawsuit against state DOH

Suit claims adult care facilities are forced to violate law

by Nancy Webber

NYSNA has joined a lawsuit against the New York State Department of Health, charging that the state is forcing adult care facilities to violate state law by issuing a directive requiring them to administer medications to residents who are incapable of managing their own medications.

The lawsuit, filed May 25 in the New York State Supreme Court by NYSNA and the New York Coalition for Quality Assisted Living (NYCQAL), argues that the directive violates the state Nurse Practice Act. That law specifies that medications must be administered by licensed nurses.

“Adult care facilities are not recognized by the state as medical facilities,” said Jeffery Edelman, board president of NYCQAL. “These are residences where people can receive room and board and other basic personal services. These facilities simply do not have the resources or qualified staff to oversee this type of medical care.”

“NYSNA is concerned about the health and safety of the residents in adult care facilities,” said Tina Gerardi, NYSNA deputy executive director. “Nurses are qualified to properly administer medications, assess potential drug interactions, monitor patient reactions, and respond to complications. The state must ensure that all residents have access to appropriate nursing care.”

The “Catch-22” for operators of adult care facilities is that the state provides only $32 per day in reimbursement for residents who are dependent upon Medicaid and SSI. “Adult care facilities don’t have the financial resources to hire nurses,” said Francesca Sommer, NYCQAL executive director. “The state wants to turn these facilities into medical institutions without providing the necessary funding.”

The lawsuit claims that the state has an obligation under the Medicaid program to ensure that adult care facility residents have the same access to services as Medicaid patients who receive home care.

“This is another example of a disturbing trend,” said Gerardi. “It is similar to our recent experience with the state allowing unlicensed personnel to administer medications in day care centers, even though this practice was in violation of state law.”