(dissenting). The guidelines plaintiff has adopted do not seem to me inconsistent with a fair reading of the relevant Department of Health regulation, 18 NYCRR 485.14. Apparently, the Department saw no inconsistency either: It reviewed and commented on the guidelines before they took effect, and did not raise the objections that defendants raise. While those objections are based on legitimate concerns, plaintiffs members have legitimate concerns also, and the balance to be struck between the two should be decided by the Department, not by the courts.
The governing statute, Social Services Law § 461-a (3) (b) (ii) and (iii), says that the assisted living facilities that make up plaintiffs membership shall not “restrict or prohibit the access to the facility nor interfere with . . . confidential visits with residents” by advocacy organizations like defendants. 18 NYCRR 485.14 implements the statute, saying that a facility operator “shall not restrict or prohibit access to the facility” by such organizations (18 NYCRR 485.14 [a] [2], [3]), specifying hours in which access must be permitted (18 NYCRR 485.14 [b]), authorizing operators to require visitors to sign in (18 NYCRR 485.14 [c]), protecting the rights of residents against unwanted intrusion by visitors (18 NYCRR 485.14 [e], [f]) and permitting operators to restrict or prohibit access “by individuals who the operator has reasonable cause to believe would directly endanger the safety of such residents” (18 NYCRR 485.14 [g]). Neither the statute nor the regulation, however, can be read to mean that literally all limitations on access not expressly permitted by the text are forbidden. Obviously, the operators can impose some reasonable limitations — requiring visitors to enter by certain doors, to behave in an orderly manner, to stay away from rooms where confidential records are kept and so forth. This dispute concerns whether the particular limitations that plaintiffs guidelines impose are permissible.
The main substantive differences between the parties, as far as I can tell, boil down to these: defendants want to visit without disclosing to the operator’s employees which residents they are visiting; to go directly to a resident’s room, without first having an employee announce them and ask whether the visit is welcome; and to enter a facility without having a particular resident in mind, to find out if there are some who want to talk to them. Plaintiffs members do not want defendants to do these things.
*890I can see both sides of the argument. I appreciate the need to protect vulnerable people from abuse by an operator who may be more interested in saving money than in providing good care; but I can also understand that the activities of patient advocates with a strong sense of their mission could be burdensome and disruptive. More specifically, I see the point of allowing advocates to visit without disclosing who their clients are, but I doubt whether that is really possible in a residential care facility; I am prepared to believe that some residents will be better served if an advocate is allowed to come in unannounced, but I can also believe that some residents will be annoyed and made uncomfortable when that happens; and I see obvious advantages and disadvantages to allowing advocates to walk through a facility looking for potential clients.
I think we should let the Department sort these complicated problems out. If the Department wants to enact regulations that would explicitly give defendants and similar organizations the kind of access they are asking for, the statute seems broad enough to authorize it. But the Department has adopted no such regulations, and it evidently does not read the regulations it has adopted as prohibiting what plaintiff has done. Plaintiff sent these guidelines to the Department in draft form, and a Department official went through them line by line, without raising the objections defendants are raising. This evidence of the Department’s interpretation of its own regulations seems much more persuasive to me than two seemingly contradictory letters — one favorable to plaintiffs position, one to defendants’ — issued by the Department several years ago, on the same general subject.
Chief Judge Lippman and Judges Ciparick, Graffeo, Pigott and Jones concur; Judge Smith dissents in an opinion in which Judge Read concurs.
Order affirmed, without costs, in a memorandum.