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Judge rules Erie County’s Ruthie’s Law is ‘unlawful’ after lawsuit by nursing homes

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Tom Dinki
/
WBFO News
Erie County Senior Services Long Term Care Coordinator Amanda Bender and Commissioner David Shenk visit Fox Run at Orchard Park nursing home Feb. 6, 2020, during a series of unannounced visits for Ruthie's Law compliance.

Erie County’s nursing home regulations, known as Ruthie’s Law, are “unlawful, unconstitutional and unenforceable,” a New York State Supreme Court justice ruled this week.

Justice Donna Siwek made the ruling on Tuesday, over 18 months after a group of nursing homes first filed a lawsuit against the county over the 2017 law that they claimed was invalid.

The New York State Health Facilities Association (NYSHFA), a nursing home lobbying group that filed the suit, had long argued the state constitution does not allow counties to make laws for nursing homes, which are overseen by the state Department of Health. Section 2812 of State Public Health Law says that, “no county, town, village or city shall enact and enforce regulations and standards for nursing homes and hospitals.” The state definition of hospitals includes skilled nursing facilities.

“Despite whatever good intentions the Erie County Legislature and County Executive may have had regarding nursing home patient care when Ruthie’s Law was enacted for the reasons set forth herein, Plaintiffs are correct in that Ruthie’s Law is unlawful, unconstitutional and unenforceable,” Siwek wrote in her ruling.

The ruling bars the county from enforcing Ruthie’s Law. No monetary amount was awarded.

Neil Murray, an Albany attorney for NYSHFA, told WBFO Wednesday the group is “very pleased with the court's decision.”

"We understand Erie County’s intentions. They were well-intended,” he said. “But the fact is that local legislators like Erie County do not have regulatory jurisdiction over nursing homes.”

Ruthie’s Law was inspired by Ruth Murray, a Buffalo nursing home resident who was beaten to death by another resident in 2016 and whose family wasn’t notified of her hospitalization for several hours. The nursing home, Emerald South, has since closed.

The law was proposed by county Executive Mark Poloncarz and passed by the county Legislature in 2017. It mandated nursing homes submit reports detailing any injuries and abuse directly to the county twice a year, and alert families within two hours of their loved ones being hospitalized. It also mandated nursing homes disclose their federal star ratings to prospective families.

However, NYSHFA argued Ruthie’s Law regulations were redundant. State law already mandates nursing homes report abuse, injuries and negligence deaths to the state Department of Health, while U.S. Centers for Medicare and Medicaid ratings are already publicly available on federal and state websites.

The state already requires nursing homes to report hospitalizations to families, although it gives them a whole 24 hours to do so.

“So all the issues that Ruthie’s Law purported to address are currently addressed in state law and in federal law,” said Stephen Hanse, president and CEO of NYSHFA.

Currently, just one-fifth of the county’s 35 nursing homes complied with Ruthie’s Law during the latest reporting period, according to the county website.

But the county has struggled to enforce Ruthie’s Law since its inception. After WBFO reported in October 2019 that only one-third of county nursing homes were complying with the law, the Legislature’s Republican Caucus sent a letter to Poloncarz questioning the lack of enforcement. Legislators then questioned county Senior Services Commissioner David Shenk during a January 2020 hearing.

Shenk and the county Department of Senior Services then announced in February 2020 that they would begin fining nursing homes up to $2,000 for failing to comply with Ruthie’s Law. A week later, NYSHFA and eight local nursing homes filed their lawsuit.

The county has since agreed not to fine nursing homes until a judgement was made in the case.

The county legislator who has been most critical of the county over Ruthie’s Law is Minority Leader Joseph Lorigo, a Conversvative Party member.

Lorigo, who voted for Ruthie’s Law in 2017, said legislators had concerns about Ruthie’s Law’s legality from the beginning, but that Poloncarz, a Democrat, assured them the law was constitutional and that the county would defend it.

“Hindsight being 2020 tells me that the county executive and his administration knew that the law was really nothing more than a symbolic gesture, possibly to score political points,” he said.

Poloncarz, who ran a political ad touting Ruthie’s Law during his 2019 re-election campaign, said in a written statement Wednesday that he was disappointed by the judge’s decision and is reviewing potential next steps, including an appeal. He added that the COVID-19 pandemic “underscored the need for county oversight of nursing homes.”

WBFO asked Poloncarz about Ruthie’s Law during a news conference in March, as the state Legislature was considering several reforms to the nursing home industry in light of the pandemic and over 13,000 deaths statewide.

“We should have the power to enforce this law,” he said. “New York state, if they're going to make major nursing home changes after all the issues we've seen, they should give the local health departments the power to go in and confirm the safety of a facility.”

“Why would [nursing homes] be suing us to prevent a law from taking effect that is there to protect their patients?” he added, “unless they really didn't care about the safety and care of their patients? Says a lot.”

Lorigo accused Poloncarz’s administration of “pressuring” the Legislature into voting for Ruthie’s Law, but said he personally would not be pressured in the future.

“I'll be much more skeptical than I was,” he said.

As for whether the county Legislature will try to regulate nursing homes again, Lorigo said it’s something they’ll have to discuss.

“I do take solace in the fact that there are state and federal provisions to protect people in nursing homes,” he said. “But maybe the best step that we can take as a county government is to try and work with these nursing homes on something a little bit less restrictive … to make sure that we're taking care of the residents that live there and not looking to penalize before we try to work together. Because I think, at this point, our hands are tied.”

Hanse said he does not expect other county governments to try to regulate nursing homes in the future, even amid a wave of new state regulations and increased scrutiny on the industry.

“The law is very clear, and attorneys for another county that may be considering a local law could read this case and have a full understanding that county government does not have the authority to regulate a hospital or nursing home,” he said. “What we expect to do is actually work in partnership with counties and the state to address the long-term care workforce crisis. We are really seeing a shortage of workers in nursing homes and really working in partnership with counties, working in partnership with the state, to recruit and retain workers into long-term care, that is the essential issue that we're facing right now.”

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