By MICHAEL VIRTANEN
Associated Press

ALBANY - New York's top court has refused to order nursing homes to give state lawyers access to hundreds of psychiatric patients so they can advocate for their rights to treatment alternatives, living conditions or even release.

The Court of Appeals, divided 4-3, concluded that the state Office of Mental Health decided not to license the nursing homes, so lawyers for the Mental Hygiene Legal Service lack jurisdiction there.

Hon. Eugene Pigott Jr. declined to express an opinion for last week's court majority on whether OMH made a wise decision, but said it could be challenged in a separate legal proceeding. Three judges - Hon. Victoria Graffeo, Hon. Susan Read and Hon. Robert Smith - concurred.

Chief Judge Hon. Jonathan Lippman wrote for the minority that courts could not "cede to bureaucrats" the decision about when and where lawyers are needed "in defense of basic liberty interests." Hon. Carmen Beauchamp Ciparick and Hon. Theodore Jones Jr. agreed.

State mental institutions began in 1996 discharging patients to nursing homes for continued but lower-level care. The New York Times reported six years later that many were confined to highly restrictive "neurobiological units" in nursing homes without lawyers to protect their interests.

The lawyers advocate for the patients on issues like getting or refusing care and treatment, including psychotropic drugs, discharge planning, privileges and access to fresh air, exercise, phones and visitation, which are limited in nursing homes.

The Mental Hygiene Legal Service, established in 1965 to guard the rights of the mentally disabled in institutions, investigated the newspaper report and sought access to the patients. The nursing homes said no, and lower courts agreed. Meanwhile, the nursing homes shut down the so-called "NBUs."

Sarah Lichtenstein, attorney for the five nursing homes in Queens, Long Island and Staten Island named in the suit, said their residents have privacy rights and that the skilled-nursing facilities could not unilaterally agree to letting the lawyers see them and their medical records. "If they requested to see a particular resident and the resident requested to see them, our clients would not prevent that," she said.

Lichtenstein said most nursing-home residents are there voluntarily. "If they want to live somewhere else and be discharged, they can," she said, though that can be "subject to what's in their best interests healthwise. If they can't care for themselves, it gets more complicated."

In the MHLS Second Department, which brought the suit, deputy director Dennis Feld said they've been trying to get access for seven years to clients that they previously represented at state psychiatric centers. He said they remain in restrictive settings, still need advocates, and now a legislative change would probably be required so the lawyers can carry out their state mandate to represent them.

Feld said there are probably about 200 affected nursing-home patients in his region and more in the other three departments around the state.

Asking the patients themselves to take the initiative to contact the legal service and raise criticisms about their treatment and status is unrealistic, Feld said. "We have a right to speak to these individuals in private. We do at the psychiatric centers,'' he said.