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Most Erie County nursing homes not complying with Ruthie’s Law

Erie County
Erie County Executive Mark Poloncarz, surrounded by Ruth Murray's family, addresses the media after signing Ruthie's Law in July 2017.

Ruthie’s Law was meant to hold nursing homes more accountable. Proposed by Erie County Executive Mark Poloncarz and passed by the county Legislature just a few months later in July 2017, it mandates facilities report abuse-related incidents to the county twice a year, and submit proof they’re disclosing their ratings to prospective clients.

Now, more than two years after it was signed into law, it’s difficult to say what, if any, impact it’s had.

Just about one third of Erie County’s nursing homes — 13 of 36 — complied with Ruthie’s Law this most recent reporting period. Overall, through four reporting periods so far, nursing homes have complied at a rate of less than 40%.

“I definitely think it’s disappointing,” said David Shenk, commissioner of Erie County Senior Services, which is supposed to receive the reports. “It’s a matter of transparency. If these agencies want to demonstrate that they’re transparent and that they respect local government, they would report, they would comply with Ruthie’s Law.” 

It’s also troubling to Carol Kuszniaj, whose mother Ruth Murray’s beating death in a nursing home was the inspiration for Ruthie’s Law.

“That’s very disturbing to know that they can’t comply with what they’re supposed to be complying with,” Kuszniaj said. “They’re hiding something. That’s the reason they’re not complying. What are they hiding?”

Nursing homes, which have contested the law since it was introduced, say they’re not hiding anything. 

Randy Gerlach, president and CEO of Schofield Care in Buffalo, said nursing homes are concerned about what happened to Murray, but that Ruthie’s Law is redundant.

Ruth Murray and her daughter, Carol Kuszniaj.

New York state law already mandates nursing homes report abuse, injuries and negligence deaths to the New York State Department of Health. Western New York’s 74 nursing homes reported 123 of these incidents to the state in 2016, the most recent year of data available.

“What we do on a daily basis is extremely time consuming,” said Gerlach, who is also vice chair of the New York State Health Facilities Association, which represents nursing homes across the state. “Quite honestly if we have to report these things already, it takes time away from other critical things we might be able to do.”

Gerlach also notes the U.S. Centers for Medicare and Medicaid ratings, required by Ruthie’s Law to be shared with clients, are already publicly available on federal and state websites.

Thus far, his and other nursing homes haven’t faced repercussions for not complying. 

Ruthie’s Law states the county can fine nursing homes with civil penalties of up to $2,000 and subpoena their records, but neither has happened.

Shenk, who Ruthie’s Law says has the power to subpoena the records, said he has to look into the measure further.

He said the county, for now, is simply sending nursing homes letters reminding them to comply and getting their message out in the media. His office issued a press release about Ruthie’s Law last month.

State Health Facilities Association attorneys argue that’s likely because neither the fine nor the subpoena would hold up in court. 

They point to Section 2812 of New York State Public Health Law, which says counties and local municipalities can’t make regulations for hospital facilities, which are overseen by the state Department of Health.

“In my opinion, a court would find that Ruthie’s Law is preempted by Section 2812 … and as such, is unenforceable as a matter of law,” said Stephen Hanse, president and CEO of the state Health Facilities Association, in an email.

Asked why the county would make an allegedly unenforceable law, Gerlach replied, “you have to look at it from a political perspective.”

“It was a very important topic at the time,” he continued.

Poloncarz, who recently posted a campaign ad praising Ruthie’s Law on this Twitter page, declined to be interviewed about Ruthie’s Law. His spokesperson said the county executive believes government has a responsibility to protect its citizens and he remains hopeful nursing homes will follow the law.

Erie County Executive Mark Poloncarz speaks during a debate at the WNED-WBFO studios Oct. 17.

During last week’s candidate debate at the WNED-WBFO studios, Poloncarz was asked about Ruthie’s Law and two other county services already covered by the state. He directly addressed the other two redundancies, but not Ruthie’s Law. 

“What my administration has done is ensure that we’re focusing and protecting the people of this community,” he said during his response.

In addition to pushing for Ruthie’s Law, Poloncarz also signed an executive order creating a county website for nursing homes’ ratings so county residents can more easily access them. The order also created a “Know Your Rights” guide for potential nursing home patients. 

These measures all came in the months following Murray’s death in 2016. 

Murray, an 82-year-old nursing home resident who suffered from dementia, was severely beaten by a male resident after wandering into his room.

The now-closed nursing home, Emerald South, originally told Murray’s family she only had just a bump and scratch and would be released from the hospital shortly. It wasn’t until the family later called the hospital that they learned Murray was actually in critical condition. 

She died three days later.

“They knew the severity. Her family could have been there for her for that couple hours she was there by herself,” Kuszniaj said.

For this reason, Ruthie’s Law also mandates nursing homes truthfully notify families within two hours of a loved one being hospitalized. 

It doesn’t mandate nursing homes prove they’re doing this, but county officials said they have not received any allegations a nursing home hasn’t followed the two-hour mandate since Ruthie’s Law went into effect.

It’s unclear how the county will proceed with non-complying nursing homes. Shenk noted the state’s Ombudsman Program provides nursing home residents and their families with an advocate to explain their rights and receive complaints.

He said it’s ultimately the state Health Department that has the true power over nursing homes.

“It’s almost like if you own a tavern or a restaurant. Your liquor license is your primary tool to stay open and profitable. State Liquor Authority says you need to put a new lock on the door, you’re going to do it,” Shenk said, “but if the town code enforcement officer says you need to be quieter, it’s a little different. The state Health Department has the ultimate hammer.” 

Still, Kuszniaj would like to see the county continue to go after nursing homes by subpoenaing their records. She feels transparency is a life or death issue.

“They need to step up and find out what is going on,” she said. “No family should ever have to go through what my family went through. No one should lose their loved one in a devastating way (like) my mother was murdered in the nursing home.” 

The next Ruthie’s Law reporting date is Dec. 31.

Tom Dinki joined WBFO in August 2019 to cover issues affecting older adults.
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