The head of Erie County’s Department of Senior Services says he will fine nursing homes that don’t comply with Ruthie’s Law by the end of the month, seemingly ending months of criticism and scrutiny over a lack of fines.
Senior Services Commissioner David Shenk made the surprise announcement before the county Legislature’s Health and Human Services Committee Thursday afternoon. Asked by legislators for an update on Ruthie’s Law, Shenk revealed he sent a final warning letter to the 16 noncompliant nursing homes Wednesday and plans to enact civil penalties on them if they don’t comply by Feb. 28.
“This is their final notice and they’re compelled to do it by the 28th,” Shenk told WBFO after the meeting, “and if they don’t, we’re moving forward.”
It was the first time Shenk and the county administration definitely stated they would impose the $1,000 to $2,000 civil penalties described in Ruthie’s Law, which mandates nursing homes report injuries and abuse to the county twice a year, as well as submit proof they disclose their ratings to prospective clients.
Shenk had long maintained he needed to consult with Erie County Attorney Michael Siragusa about levying fines, while Erie County Executive Mark Poloncarz, who proposed Ruthie’s Law, told The Buffalo News this week the county would “pursue all avenues,” including fines.
The county administration has faced criticism ever since WBFO reported about the lack of Ruthie’s Law fines in October. The Legislature’s Republican caucus wrote a letter to Poloncarz demanding an explanation for the lax enforcement days after the story, while Legislator Lisa Chimera, a Democrat, wrote a letter this week scolding the administration for its lack of urgency.
The news of impending fines was received positively by legislators Thursday.
“It's a pleasant surprise,” said Legislative Minority Leader Joseph Lorigo, “but it shouldn't have taken this long and it shouldn't have taken so much media pressure to get it done. It should have just been done. It's the right thing to do.”
The county’s hesitation may have been due to questions about the validity of Ruthie’s Law.
The New York State Health Facilities Association (NYSHFA), which represents nursing homes across the state, has long argued that Ruthie’s Law is preempted by Section 2812 of New York Public Health Law, which says that counties can’t make regulations for nursing homes. Even Shenk admitted before the Legislature last month he’s unsure he has the legal authority to levy Ruthie’s Law fines.
However, the county now appears willing to test the legal waters of Ruthie’s Law. Siragusa, in a letter to the Legislature last week, said his office will “zealously defend any such legal action” if the law is challenged.
The law is all but guaranteed to be challenged if fines are levyed. NYSHFA President and CEO Stephen Hanse told WBFO last week his organization will help nursing homes file Article 78 petitions against any Ruthie’s Law fines.
Erie County passed Ruthie’s Law in 2017 following the death of Ruth Murray. The 82-year-old dementia patient was beaten to death by a fellow nursing home resident after mistakenly wandering into his room. The nursing home where this took place, Emerald South, has since closed.
Emerald South did not notify Murray’s family of her injuries and hospitalization for several hours, originally telling them she only had minor injuries. For this reason, Ruthie’s Law also mandates nursing homes truthfully notify families within two hours of a loved one being hospitalized.
The county has said it hasn’t received any allegations that a nursing home hasn’t notified a family within two hours since Ruthie’s Law took effect.
However, NYSHFA argues that Ruthie’s Law is not only invalid, but duplicative. Nursing homes already have to report injuries and abuse to the New York State Department of Health, while nursing home ratings are already publicly available on state and federal websites.
After Thursday’s meeting, Shenk defended the long delay in levying fines. He noted his calls and emails, as well as unannounced visits last week, caused several noncompliant nursing homes to submit a total of 22 past-due reports.
Now 19 of the county’s 35 nursing homes are in compliance, compared to just 13 of 36 nursing homes last fall.
“I think it’s been an ongoing conversation between myself and the Legislature and the administration,” he said. “Like I said from the beginning, I’ve heard their concerns and I take them serious, but I believe we had to go through a process.”
Lorigo, C-West Seneca, was somewhat skeptical Shenk will actually go through with fining nursing homes that don’t comply by Feb. 28. During the meeting, he directly asked Shenk if he would levy the fines.
“That’s the plan,” Shenk answered.
“No. Are you going to do that? Yes or no?” Lorigo said.
Shenk then answered, “Yes.”
“I’m glad,” Lorigo said. “ … Let’s get those fines going.”