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Despite renewed scrutiny, half of Erie County nursing homes still not complying with Ruthie’s Law

WBFO file photo
David Shenk, commissioner of Erie County's Department of Senior Services, speaks with the media about Ruthie's Law after a county Legislature committee meeting Jan. 24. Senior Services released new compliance data on Ruthie's Law Tuesday.

Roughly half of Erie County nursing homes are still not complying with Ruthie’s Law.

The county’s Department of Senior Services released the newest compliance data Tuesday, showing that only 18 of the county’s 35 nursing homes compiled with the law during the most recent reporting period.

This comes despite Senior Services’ rejuvenated push to get nursing homes into compliance, as well as the county Legislature’s increasing scrutiny of Senior Services’ enforcement techniques. 

Legislative Minority Leader Joseph Lorigo, who has criticized Senior Services for not levying fines against noncompliant nursing homes, said the latest data is just further evidence that fines are the only way to get nursing homes to follow the law.

“Otherwise, we have a law that exists merely on paper that doesn’t accomplish anything,” Lorigo, C-West Seneca, told WBFO. “So if we really cared about protecting seniors, if we really cared about making sure that these nursing homes were in compliance with the law … we would use every tool on our belt to make sure that it was happening.”

Commissioner of Senior Services David Shenk, who has been hesitant to enact the $2,000 civil penalties described under Ruthie’s Law, argued his tactic of calling nursing homes asking them to comply has yielded positive results. 

He noted that more than half of nursing homes complied for the first time since the first Ruthie’s Law reporting period in 2017. He also noted that several nursing homes have now retroactively complied by submitting paperwork from the previous four reporting periods.

When WBFO first reportedabout the lack of Ruthie’s Law compliance last fall, the overall the nursing home compliance rate was less than 40%. Factoring in the retroactive compliance, the overall compliance rate is now about 50%.

“Obviously, we are trending in the right direction,” Shenk said. 

Ruthie’s Law was proposed by Erie County Executive Mark Poloncarz and unanimously passed by the legislature in 2017. It was supposed to make nursing homes more transparent following the death of 82-year-old Ruth Murray, who was beaten to death by a fellow Buffalo nursing home resident.

Ruthie’s Law mandates nursing homes send a report detailing injury- and abuse-related incidents to the county twice a year. The bi-annual report is also supposed to include documentation that nursing homes are disclosing inspection ratings with prospective clients.

However, there’s questions about whether Ruthie’s Law is even enforceable. The New York State Health Facilities Association, which represents nursing homes across the state, argues Ruthie’s Law is invalid under Section 2812 of New York Public Health Law, which says counties can make regulations for nursing homes.

Even Shenk, speaking before the Legislature’s Health and Human Services Committee last month, admitted he’s unsure he has the legal authority to levy fines against the nursing homes. He told legislators he plans to make a list of the noncompliant nursing homes and then consult with Erie County Attorney Michael Siragusa.

On Tuesday, Shenk said he’s since sent that list to Siragusa. It includes nine nursing homes who’ve stated they won’t comply; four nursing homes that haven’t answered the county; two nursing homes awaiting advice from their attorneys; and two nursing homes who plan to comply but haven’t as of yet.

However, Shenk stopped short of promising he’ll fine the nursing homes.

“Once I hear back from the county attorney, we’re going to move forward,” he said.

If the county does decide to start fining noncompliant nursing homes, Randy Gerlach expects he’ll be the first person to receive one. He’s president and CEO of Schofield Care, one of seven nursing homes that haven’t complied with Ruthie’s Law a single time. He’s also vice chair of the state Health Facilities Association.

“They can fine us, they’ll end up in court … but they’re going to lose,” Gerlach said. “It’s time they just understand and agree that the law is unenforceable.”

In addition to being unenforceable, Gerlach argues Ruthie’s Law is redundant. Nursing homes already have to report injury- and abuse-related incidents to the New York State Department of Health, while inspection ratings are already publicly available on state and federal websites.

If Erie County really wants to improve nursing homes, Gerlach said it should focus on giving them their Medicaid payments on time and bracing for Gov. Andrew Cuomo’s proposed $2.5 billion Medicaid cut and 3% Medicaid spending cap.

“We’re all under the gun,” he said. “It’s just a brutal circle we’re trying to deal with.”

Gerlach said the few additional nursing homes complying this period and retroactively complying for past periods are “outliers” and not indicative of a changing mindset among nursing homes.

“From the calls I’ve had, some people are feeling pressured or threatened with fines,” he said.

Gerlach also accused the county of “padding the numbers” by retroactively marking down nursing homes as compliant for past reporting periods.

Lorigo also criticized that move, saying it’s misleading about the actual success of the law.

“There’s no way to retroactively comply with the law. You can’t send something in six months later as if you were in compliance six months ago,” he said. “Trying to fudge the numbers and make it look like more people have complied because someone’s actually paying attention now is nothing more than an attempt to trick the public.”

Lorigo added it’s time that Poloncarz, who proposed Ruthie’s Law and ran a campaign ad praising the law, address the legislature. Poloncarz has not made any formal public comments regarding Ruthie’s Law enforcement since the issue started receiving renewed attention.

“He was the one who stood at the podium, he was the one who heralded this law as a way to protect seniors,” Lorigo said. “He needs to wear the fact that he’s not doing everything that he can.”

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