Wednesday, April 13, 2016

A party challenging a rule or regulation adopted by a State agency has the heavy burden of showing that the regulation was unreasonable and unsupported by any evidence


A party challenging a rule or regulation adopted by a State agency has the heavy burden of showing that the regulation was unreasonable and unsupported by any evidence
New York State Corr. Officers and Police Benevolent Assn., Inc. v New York State Off. of Mental Health, 2016 NY Slip Op 02696, Appellate Division, Third Department

The New YorkState Correctional Officers and Police Benevolent Association, Inc. [NYSCOPBA], representing certain personnel at psychiatric centers operated by Office of Mental Health [OMH], brought an Article 78 action challenging an OMH emergency regulation* that required personnel employed at psychiatric centers operated by OMH and psychiatric facilities licensed under the Mental Hygiene Law who had not been vaccinated against influenza to wear face masks in areas where patients might be present during influenza season. NYSCOPBA contended that the emergency regulation was arbitrary and capricious. Supreme Court dismissed the petition and NYSCOPBA appealed.

In its appeal NYSCOPBA argued that the mandatory mask-wearing requirement was arbitrary and capricious because it fails to take into account the special circumstances present in psychiatric facilities. NYSCOPBA theory: the job responsibilities of the affected personnel included “such functions as assisting psychiatric patients in their treatment and rehabilitation, maintaining their safety and security and modeling appropriate behavior, and that the mask-wearing requirement interferes with their ability to communicate with patients, act as effective role models and otherwise perform their job responsibilities.”

In support of the challenged regulation, OMH submitted, among other things, the affidavit of Lloyd Sederer, Chief Medical Officer for OMH. Sederer said that in promulgating the emergency regulation OMH was "following the lead" of the New York State Department of Health [DOH] which had earlier promulgated a rule** addressing the use of masks to prevent influenza transmission in health care facilities. Sederer said that OMH relied upon the knowledge and expertise of DOH clinicians in deciding to adopt a similar regulation.

In addition to relying upon the expertise of DOH, OMH said that it had also considered research and recommendations from various authorities such as the Centers for Disease Control and the Food and Drug Administration concerning the use of face masks to control the spread of disease. 

OMH also noted its experience in treating the mentally ill indicated that individuals with chronic and serious mental illness suffer higher rates of chronic physical illness than other persons and that recent influenza seasons had been more severe than in the past. Thus OMH determined that the adoption of an emergency regulation, and ultimately a final regulation, in an effort to control influenza transmission was imperative to safeguard the health, safety and welfare of patients.

The Appellate Division said that "[OMH] is entitled to a high degree of judicial deference, especially when act[ing] in the area of its particular expertise,” and decided that NYSCOPBA had failed to meet its heavy burden of showing that the regulation was unreasonable and unsupported by any evidence.

In the words of the Appellate Division, “[t]aken as a whole, the record demonstrates that OMH did not disregard the special circumstances present in psychiatric facilities, but instead weighed these circumstances carefully and reached the reasonable conclusion that any disadvantages associated with mask-wearing in psychiatric facilities were outweighed by the substantial advantages they offered in preventing or reducing the transmission of influenza.”

As NYSCOPBA did not meet its burden of demonstrating that OMH acted arbitrarily, capriciously or unreasonably in promulgating the challenged regulation, the Appellate Division dismissed its appeal.

* The Appellate Division ruled that NYSCOPBA’s petition was not rendered moot by the expiration of the emergency regulation after 90 days. OMH subsequently adopted a permanent regulation that incorporated the mandatory mask-wearing requirement into its Rules concerning preventing influenza transmission [see 14 NYCRR 509].

** In Matter of Spence v Shah, 136 AD3d 1242, the Appellate Division determined that the DOH regulation was not arbitrary, capricious, irrational or contrary to law.

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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