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Lack of Ruthie's Law enforcement draws criticism

After 82-year-old Ruth Murray died in a nursing home assault in 2016, Erie County fast-tracked new regulations to prevent nursing homes from underreporting the deaths and injuries of residents.

It has not gotten off to a good start.

"Ruthie's Law" requires nursing homes to inform a designated relative or guardian within an hour of a resident suffering an injury requiring hospital treatment. It gives the county's commissioner of senior services the ability to subpoena and review nursing home injury reports. And it requires nursing homes to send a report to the Department of Senior Services twice a year regarding altercations that result in injury or death.

But more than 2½ years later, barely more than half of nursing homes in the county are submitting reports. Many argue the law is not legally binding. That includes the largest nursing home chain in the region, Elderwood, which operates facilities in Amherst, Cheektowaga, Grand Island, Hamburg, Lancaster and Williamsville.

Their refusals have led to criticism from county legislators who want to know why nursing homes aren't complying with the law and why the county isn't doing more to make them.

"The enforcement issue is something we need to address as a body, because we are responsible, I think, to protect our most vulnerable individuals," said Democratic County Legislator Lisa Chimera, chairwoman of the Health and Human Services Committee. "The people who are not complying, those are the people we really should be talking about because I think it’s shameful."

Members of the Republican-supported minority caucus are even more critical. They point out that County Executive Mark Poloncarz rolled out Ruthie's Law with great fanfare in 2017. He held two news conferences, made it a focal point of his State of the County speech that year, and highlighted the law as part of his re-election campaign last year.

But as of last fall, as first reported by WBFO in October, barely a third of county nursing homes had complied with the law.

The New York State Health Facilities Association has repeatedly informed county administrators that the state's public health laws preempt the local law. Elderwood sent a statement to The Buffalo News calling Ruthie's Law "unenforceable and duplicative" of existing state requirements.

In light of this, Minority Leader Joseph Lorigo, C-West Seneca, questioned why the law was touted as a game changer in the first place.

"It was a good political soundbite for the county executive that he was protecting seniors when he had no intention of doing so," he said.

Poloncarz told The News on Friday that the county has not ruled out taking aggressive action against noncompliant nursing homes, but he supports efforts by Senior Services Commissioner David Shenk to encourage compliance through personal outreach.

"We're trying to work with the nursing homes to avoid litigation. It’s as simple as that," Poloncarz said. "If they don’t respond, we will pursue all avenues, not only fining them but subpoenaing to get the documents."

Shenk said that as of Thursday, he has communicated with every noncompliant nursing home. As a result, 19 of 35 nursing homes have complied with Ruthie's Law. Two others, Safire Rehabilitation of Northtowns and Safire Rehabilitation of Southtowns, have said they would comply but have not yet submitted the required reports, Shenk said.

The rest either refuse or are undecided.

The nursing homes that refuse include:

  • Six Elderwood nursing home communities
  • Beechwood Homes in Amherst
  • Buffalo Center for Rehabilitation and Nursing
  • Schofield Residence in Kenmore

Nursing homes that have neither refused nor agreed to comply and are seeking further consultation include:

  • Fiddler's Green nursing home in Springville
  • Ellicott Center for Rehabilitation and Nursing in Buffalo
  • Humboldt House nursing home in Buffalo
  • Rosa Coplon Living Center in Amherst
  • Williamsville Suburban nursing home

During a Legislature committee meeting last week, Shenk faced tough questions from legislators troubled by the low compliance.

"I’m trying to take more of a softball approach, and then identify who wants to play hardball, then play hardball," Shenk told legislators.

Shenk's response did not appear to satisfy legislators, who unanimously adopted Ruthie's Law one year after Murray, a dementia patient at Emerald South Nursing Home, was fatally beaten after wandering into another resident's room. That resident, apparently thinking Murray was an intruder, beat her so severely that she ended up with broken bones and a collapsed lung. Family members were not notified of the extent of her injuries until hours after she had gone to the hospital.

Murray died three days later.

"Rather than enforcing a law that’s been on the books for three years, we’re making nice phone calls," Lorigo said. "The next time you come into this body, into this chamber, I want to hear that fines have been levied. Fine these organizations."

He added, "If the county attorney says he can’t, then he should come here and tell us why."

Republican Legislator John Mills also said he would never have supported the law if it didn't have teeth.

Shenk, who was appointed as commissioner of the Senior Services Department last May, said he did not have the authority to levy fines under the law and is unsure whether the county can. But he's leaving it to the county attorney to decide.

Democratic Chairwoman April Baskin asked why the County Attorney's Office, which drafted the legislation, suggested the law was in good form when nursing homes are arguing that it isn't.

Ruthie's Law has been repeatedly challenged by the New York State Health Facilities Association. Multiple letters – sent to administrators in Senior Services, Social Services, the County Attorney's Office and to Poloncarz – request the county stop requesting semiannual reports from the nursing homes and cease all other attempts to enforce the law.

They argue the state's Public Health Law 2812 preempts the county law. The state law indicates that no county, town, village or city may regulate hospitals, which include nursing homes. They also say the nursing homes already meet a high burden of regulation and reporting to the state, making Ruthie's Law redundant.

A statement from Elderwood said, "The Erie County legislation is both unenforceable and duplicative. Its intent, to provide transparency to consumers, is already enabled through publicly available reports made to the New York State Department of Health. These reports, available from the Centers for Medicare and Medicaid Services (CMS) on the medicare.gov website, represent an even more robust and transparent set of data than what the county is asking nursing homes to report."

County leaders responded that if nursing homes already report this information, then it's not a heavy lift to provide the county similar information. Even if nursing homes believe they aren't legally required to comply with the law, Shenk said, they should support a law that encourages transparency.

Poloncarz disagreed with assertions by Republican-supported legislators that his administration has been lax in its enforcement prior to the news media and Legislature focusing more attention on the issue. He attributed some of the slowdown to a change in leadership in the Senior Services Department last year.

The county has not received any reports of an injured nursing home resident's family not being informed of an injury promptly, he said.

He also pointed to information on the Erie County website that lists updated information on which nursing homes are complying with Ruthie's Law, and a separate webpage that provides the star ratings for county nursing homes.

"I don’t want to make it seem like we didn’t care," Poloncarz said, "because we do."

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