Proposed Legislation for Adult Home Residents
(Column: Ask the Attorney)
In April, 2003, MFY Legal Services proposed an amendment to the Social Services Law to add a new right to those currently available to adult home residents. This new right, known as a "Private Right of Action for the Appointment of a Receiver," would allow residents of adult homes to go to a court and ask that a receiver be appointed to manage the home and oversee the correction of violations. It would be available in cases where the health, welfare, and safety of residents are at risk.
A receivership is an equitable (or court-fashioned) remedy that is most frequently used in foreclosure and bankruptcy proceedings. When a property is in foreclosure or a business in bankruptcy, a receiver holds and manages property or assets to make sure that the they are used to pay creditors rather than for any other use. In the adult home context, the receiver has a somewhat different role: to protect the residents by remedying dangerous conditions and violations that the home's operator has failed to address.
Under the current Social Services Law, instead of being able to go directly to a court to ask that a receiver be appointed, residents must depend on the Department of Health or the Attorney General to do so on their behalf. Because the exercise of this power is at the discretion of the Commissioner of Health, residents have no means to compel the Department to seek the appointment of a receiver. This takes the power to remedy severe violations out of the hands of the residents who are directly harmed and directly experience abject conditions and leaves it in the hands of an overburdened administrative agency.
A major impetus for the proposed legislation was MFY's experience with Seaport Manor, an adult home that was eventually shut down (see "Seaport Manor: A Post-Mortem," City Voices, Jan.-Mar. 2003, p.1). The Department of Health sought the appointment of a receiver to run Seaport Manor, but only after conditions in the home had become so appalling that they could no longer be ignored and after MFY had commenced litigation. If the residents had been able to bring an action on their own behalf, the worsening conditions could have been remedied earlier.
In outlining the powers and duties of the receiver, the proposed legislation closely tracks the existing legislation for appointment of a receiver in an action brought by the Department of Health. It also borrows from another statute, Section 778 of the Real Property Actions and Proceedings Law, which allows apartment dwellers to seek the appointment of an administrator in a proceeding known as an "Article 7-A" proceeding. In an Artilce 7-A proceeding, the administrator is appointed to collect rent and other monies specifically for the purpose of remedying and removing bad conditions in the building.
A common response to any legislation that expands rights is that it will result in an increase in litigation. However, this fear is especially unfounded in the adult home context. Residents are fearful and hesitant to bring any kind of legal action because they are so dependent on the homes and their operators for housing, medication, access to their money, and all of their other needs. If they take legal action against a home while they are living in it, they risk retaliation by the home's operators and/or administrators. Given these restrictions, it is very unlikely that this right of action will be overused or result in frivolous litigation.
In this time of tight budgets, one advantage of the legislation is that it requires no funding at all. MFY is just beginning to receive feedback on the legislation from members of the Assembly. If it does not move forward in the current legislative cycle, we will continue to educate legislators about the importance of this proposed right for adult home residents and to encourage them to make it the law.