By Gerald Beallor, Co-Chair, Health Care Policy and Practice Network
The New York City Chapter of NASW has joined with nine other organizations as plaintiffs in a lawsuit challenging the constitutionality of Governor Pataki's Executive Order #20 which established the Governor's Office of Regulatory Reform (GORR). The order usurps the policy making powers of the legislature and the role of citizens in shaping the regulations which flow from public policy.
The group, representing a broad spectrum of public interest, has come together out of a common concern for maintaining basic democratic safeguards in policy making. GORR's denial of the Commissioner of Health's proposed regulation regarding standards for the delivery of social services in hospitals has galvanized the advocacy community in challenging the Governor and his associates.
Joining NASW in the suit are: Center for Medical Consumers; Coalition of Institutionalized Aged and Disabled; Disabled In Action of Metropolitan New York; Friends and Relatives of Institutionalized Aged; League of Women Voters of NYS; 1199 National Health and Human Services Union; New York Statewide Senior Council; Nursing Home Community Coalition of New York State; and Women's City Club of NY.
The lawsuit has its origins in Governor Pataki's efforts to reduce regulations in New York State which he and his conservative supporters believe are harmful to business. The hospital and nursing home regulations that were the first targets of his new policy included the removal of the requirement for social service departments in hospitals. After a huge outcry from the social work community and large numbers of citizens, unions and others and the threat of new legislation to back the social work position, the Commissioner of Health, Dr. Barbara DeBuono, sought to find a compromise position.
NASW and the other members of the Coalition to Save New York Social Work agreed to new wording which strengthened social work standards in hospitals in place of the requirement for a department. The Codes Committee of the New York State Hospital Review and Planning Council unanimously recommended its adoption. Less than a day before the Hospital Review and Planning Council was to vote on the recommended regulation, Robert King, Director of GORR, insisted the new regulation be removed from further consideration. He did this under the authority of Governors Pataki's Executive Order #20 which has now become the sub- ject of the court litigation.
The Chapter Board of Directors authorized participation in this litigation after consultation with numerous parties including legal counsel of the National Office of NASW. Barbara Brenner, outgoing president and President Carmen Ortiz-Hendricks, recommended Chapter participation as "the right thing to do". They recognized the dangers inherent in the Governor's executive order which authorizes the executive branch of the State to supersede both the legislature and the actions of commissioners whose appointment is confirmed by the Senate. State regulations are now vulnerable to changes requested by business interests. The Governor has made clear his view that New York State is over regulated. By chance, social work standards are the first casualty of GORR.
The complaint was filed in Albany last July and the Governor has already submitted argument for summary dismissal. The lead attorney for the plaintiffs, Linda Daly of Schulte, Roth and Zabel, expects further arguments in December and a decision approximately three months later. The attorneys are giving their time and expertise on a pro bono basis. This case is seen as very important in maintaining good government. Since the case hinges on constitutional issues, it will be argued through briefs and some lawyer to lawyer interrogatories. NASW's experience with
the social work regulations is an example used to state the plaintiff position, but in itself is not part of the litigation.
Because of the impact of Executive Order #20, the regulatory oversight bodies of the NYS Assembly have issued a regulatory alert for all those concerned with the rule-making process. Richard Gottfried, Chair of the Assembly Health Committee and Joan Christensen, Chair of the Administrative Regulations Review Commission have used the alert to provide information on the rule-making process for hospital and nursing home regulations at the New York State Department of Health. The notice will help organizations such as NASW and other advocacy groups to remain active in the flow of information and comments necessary to ensure regulations which are helpful to people and to avoid loss of existing regulations needed for sound patient care.
At this time, the regulations for social services remain as they were before the Governor attempted to remove the requirement for a social work department. However, many hospitals throughout New York State have consolidated social service departments with others such as case management, or have abolished the department. The Chapter is working together with the New York State Chapter of NASW to determine which hospitals have violated state regulations and will report them to the New York State Department of Health.
As the litigation goes forward, the Chapter's leadership will continue to monitor developments. The rapid proliferation of managed care and the consolidation of hospitals poses some difficult questions for social work and perhaps some new opportunities. These will be pursued in the coming months.
Developments in the current litigation, regulatory issues, and other health care policy matters will be reported and discussed at the next meeting of the Health Care Policy and Practice Network on Thursday, September 26 at 6:00 p.m. at the Chapter office.