Erie County announced last month it will finally begin fining nursing homes for not complying with Ruthie's Law after months of scrutiny over a lack of enforcement. That caused local nursing homes to file a lawsuit, arguing Ruthie’s Law conflicts with state law and is therefore illegal. WBFO explored what happens when a local law potentially conflicts with state law.
Erie County’s Ruthie’s Law mandates nursing homes do things that seem like common sense: notify a resident’s family within two hours of them being injured, disclose star ratings to prospective residents and periodically report injury or abuse incidents to government officials.
“We realized in Erie County government,” said Erie County Executive Mark Poloncarz when signing Ruthie’s Law in 2017, “we could do more to protect those that reside in senior homes.”
That may not be true.
New York Public Health Law says that counties cannot make regulations for nursing homes, since the facilities are already heavily regulated by the state Department of Health.
Now eight local nursing homes have filed a lawsuit, asking a New York State Supreme Court judge to declare that Ruthie’s Law is preempted by state law and therefore illegal. To Neil Murray, an Albany attorney with the New York State Health Facilities Association who filed the lawsuit last month, it’s an open-and-shut case.
“Government has organization and it has a chain of command,” Murray said. “You can't have lower levels of government making decisions that contradict higher levels of government.”
Poloncarz has called signing Ruthie’s Law one of his proudest moments as executive. He even ran a campaign ad about it last fall. However, he’s repeatedly declined to discuss Ruthie’s Law with WBFO over the last six months.
After nursing homes filed their lawsuit Feb. 21, he released a statement saying he’ll defend Ruthie’s Law but will not comment on pending litigation.
Is it possible Poloncarz and the county legislature passed an illegal law that conflicts with state law? If that’s the case, why didn’t the state stop them from passing it in the first place?
While state constitutions say local governments can’t pass laws that contradict state law, they can’t really stop the local governments from doing so. It’s up to individuals impacted by the law to make a legal challenge and prevent the law from being enforced.
“A democratically elected legislature is presumed to have the people's best interests in mind, they're presumed to know what the law is and to do their job diligently and ethically and responsibly,” said University at Buffalo law professor James Gardner. “And if that turns out not to be the case, the judicial system is there to correct their mistakes.”
State law says local governments can’t make nursing home laws
New York is one many states that allows for Home Rule Law. That means local governments like counties and cities are free to make whatever law they want, but only so long as those laws don’t conflict with state law.
If a local law does conflict with state law, the state law almost always preempts the local one. According to the New York State Bar Association, this preemption occurs when a local law either directly conflicts with state law or attempts to regulate a field that the state has full control over.
Local nursing homes argue both preemption situations apply to Ruthie’s Law.
Section 2812 of New York Public Health explicitly says that counties cannot make laws for nursing homes, while the state Department of Health has full regulatory control over nursing homes.
“The law is clear, unambiguous and unequivocal on its face that local governments, including counties, are not to pass laws (regarding nursing homes),” Murray said.
And he argues there's a good reason for this.
“There are 62 counties across the state in New York. Imagine if every single county decided that they were going to write their own specific additional rules regulating nursing homes,” he said. “This isn't just about Ruthie’s Law. It's about the principle that nursing homes can't be scrambling to answer to local counties, cities, towns, villages. Where does it stop?”
Plus, he notes some Ruthie’s Law requirements are already mandated by the state. Nursing homes already have to immediately report injuries, abuse and negligence deaths to the state Department of Health, and nursing homes ratings are already publicly available on federal and state websites.
However, Ruthie’s Law’s two-hour rule for notifying family members about injuries is more strict than the state’s 24-hour rule.
Poloncarz proposed Ruthie’s Law after the death of Buffalo nursing home resident Ruth Murray — no relation to Neil Murray.
She was severely beaten by a fellow dementia patient in 2016 after mistakenly wandering into his room, and her family did not learn the true severity of her injuries until several hours later. The nursing home in question, Emerald South, has since closed.
Murray said he understands the county wanted to protect nursing home residents, but should now realize it doesn’t have the power to regulate nursing homes.
“You can’t have a Machiavellian analysis of every law,” he said. “(Such as), ‘I don’t care if it’s illegal or not, the end justifies the means so I’m going to pass it anyway because it’s — quote — a good law that ought to be on the books.’”
State doesn’t prevent local government from passing unconstitutional laws
If the state constitution says local governments aren’t allowed to pass laws that conflict with state law, why didn’t the state stop Erie County from passing Ruthie’s Law?
The New York State Department of State approved Ruthie’s Law shortly after Poloncarz signed it, but it doesn’t check whether local laws conflict with state law. A department spokesperson said in an email that the department’s responsibilities are only “ministerial in nature.”
The state Department of Health also does not appear to have gotten involved with Ruthie’s Law. State Department of Health spokesperson Jeffrey Hammond declined comment for this story.
Murray said he’s alerted state Department of Health officials about Ruthie’s Law, but doesn’t expect them to intervene in the legal case.
“I think they should be more jealous of protecting their own jurisdiction and understanding the dilemma it puts on (nursing homes),” he said.
It may not be possible for the state to prevent local governments from passing constitutional laws.
“You could say the same thing of Congress. How is it that Congress can go ahead and pass a law that turns out to be unconstitutional?” Gardner said. “How do you stop that in advance?”
Gardner, who studies state constitutional law, said legislators at every level — from Congress to town council — are given a presumption of good faith. That means lawmakers get the benefit of doubt they’ll make sure their laws are legal and don’t conflict with state law.
Murray and the nursing homes claim Erie County didn’t do so with Ruthie’s Law.
“Before a local legislature passes a law, who ever is advising the county legislature ought to look and see, ‘Well, wait a minute. Before we do this, are we are we doing something that we have the authority to do?’” Murray said. “Obviously that did not happen in this case.”
Legislative Minority Leader Joseph Lorigo has criticized Poloncarz and the county administration for not fining nursing homes ever since WBFO’s original report about Ruthie’s Law in October.
Lorigo has said that if Ruthie’s Law is truly unenforceable, it’s Poloncarz that shoulders the blame.
“He wanted to stand out there and campaign on the fact that he’s protecting seniors,” he told WBFO last month, “but when it comes to the fact he actually isn’t protecting seniors and he’s not enforcing the law that he himself proposed, he’s silent.”
Lawsuits are way to void unconstitutional laws
If a local government does pass an unconstitutional law, if it’s often up to an individual, not the state, to file a lawsuit and stop it from being enforced.
“And who would bring a lawsuit like that? It would be somebody who is affected by or regulated by a local law and would then make the claim that the locality did not have the authority to enact that law,” Gardner said.
Local nursing homes are far from the first group to do this in New York state.
In the 1960s, the laundry industry challenged New York City raising its minimum wage above the state-wide minimum. A judge ultimately ruled that the city minimum wage law was not allowed to supersede the state’s minimum wage law.
More recently, a registered sex offender challenged Nassau County for placing restrictions on where he could live. A judge in 2015 ruled local governments can’t make such restrictions because the state’s sex offender laws pre-empt any local ones.
Murray said he still hopes the Ruthie’s Law can be settled without expensive litigation. As of Friday, a judge had yet to be assigned to the case and a first court date had yet to be determined.
“But politicians have a hard time admitting that they made a mistake,” Murray said, “and they're going to make the taxpayers of Erie County pay because they want to save face.”
