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EDITORIAL: Nursing homes should abide by 'Ruthie's Law' until dispute is settled

Buffalo News - 2/17/2020

Feb. 16--Seeing Democrats and Republicans in the Erie County Legislature find common cause in keeping nursing home residents safe is encouraging. Members of both parties expressed concerns at a recent session of the Legislature over lax county enforcement of Ruthie's Law, regulations passed in 2017 to protect the safety of those living in nursing homes.

As one might expect, however, the two caucuses frame the issue differently. Republicans are blaming County Executive Mark Poloncarz for not rigorously enforcing the law after proudly touting its creation when it was rolled out in 2017.

"It was a good political sound bite" with little follow-through, charged Minority Leader Joseph Lorigo, C-West Seneca.

Lisa Chimera, who chairs the Health and Human Services Committee, steered away from criticizing fellow Democrat Poloncarz and said the Legislature needs to address enforcement, with a focus on the nursing homes that are not complying.

Putting aside political finger-pointing, members of both parties are right to call attention to an issue that needs to be resolved.

WBFO-FM reported last October that only about one-third of nursing homes in the county had complied with the law. Not a single home has been hit with a financial penalty for flouting Ruthie's Law, which came about after Ruth Murray, an 82-year-old resident in a Buffalo nursing home, wandered into another resident's room and was severely beaten.

The law requires that nursing homes notify a relative or close friend within one hour after a resident suffers an injury that requires hospitalization. The county's commissioner of senior services can subpoena nursing homes for their injury reports and the facilities are required to send a report to the Department of Senior Services twice a year listing incidents involving injuries or death.

Under the law, Senior Services Commissioner David Shenk is allowed to slap facilities that do not comply with civil penalties up to $2,000. County Minority Leader Ralph Lorigo, C-West Seneca, said in a recent legislative session that the county should hit nursing homes that are not in compliance with the maximum fine and let the owners challenge the fines in court if they want to.

The whole mess defies easy fixes because of a legal dispute. Shenk is not aggressively enforcing the law because he's not sure he has legal standing to. A state statute, Public Health Law 2812, says that no locality may regulate hospitals, including nursing homes. That task is left to the state.

Shenk, who has been in the job since May 2019, said he is unsure whether the county can levy fines under Ruthie's Law and is leaving it to the county attorney to decide.

That explanation left Lorigo unimpressed. It's not up to Shenk to interpret the law, the lawmaker said, it's his job to enforce it.

A trade group representing nursing home owners, the New York State Health Facilities Association, has told county administrators that the state's public health laws preempt the county law. Many nursing home operators say they are regulated enough by the state as it is, and don't need another level of bureaucratic oversight. Elderwood, the largest nursing home chain in the region, maintains that the law is not legally binding and calls it unenforceable.

Democratic Chairwoman April Baskin asked a pointed -- and very on point -- question during the Legislature's discussion: Why did the County Attorney's Office draft the law, and say it was in good form, when nursing homes make the argument that it's not valid?

For now, Shenk is taking what he calls "a softball approach," contacting the noncompliant nursing homes and telling them to get on board with the law. He said that as of last week, 19 of 35 nursing homes had complied with the law and two more said they would be doing so.

The soft approach is a reasonable way to start, but the county may have to get tougher. The county publishes an online listing of which nursing homes are in compliance with Ruthie's Law. More facilities should make the effort to get on the list.

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