It’s been more than two years since Erie County passed Ruthie’s Law, yet none of the nursing homes that have failed to comply during that time have been penalized.
On Thursday, the Erie County Legislature finally got to directly ask the county’s Department of Senior Services why that is.
Commissioner of Senior Services David Shenk, speaking before the legislature's Health and Human Services Committee, said he’s called nursing homes asking them to comply. He also revealed he needs confirmation that he even has the legal authority to fine the facilities.
For some legislators, that’s not good enough.
“The next time that you come into this chamber to talk about it, I want to hear that fines have been levied,” Legislative Minority Leader Joseph Lorigo told Shenk during the at-times tense meeting.
It was legislators’ first chance to question Senior Services since writing a letter this past October questioning Ruthie’s Law enforcement.
That letter, written by Lorigo and others in the Republican caucus, was in response to WBFO’s report that about two-thirds of nursing homes are not complying with the law, yet Senior Services hasn’t fined or subpoenaed the facilities like the law says it will.
Ruthie’s Law was proposed by Erie County Executive Mark Poloncarz and passed by the legislature in 2017, mandating nursing homes report abuse-related incidents to the county twice a year, as well as submit proof they share inspection ratings with prospective clients.
It was named in honor of Ruth Murray, who was beaten to death by a fellow resident at a now-closed Buffalo nursing home.
Nursing homes have argued Ruthie’s Law is invalid. The New York State Health Facilities Association points to Section 2812 of New York Public Health Law, which says that counties can’t make regulations for hospitals.
“In my opinion, a court would find that Ruthie’s Law is ... unenforceable as a matter of law,” the association’s president and CEO, Stephen Hanse, previously told WBFO.
At Thursday’s meeting, Shenk acknowledged the nursing homes’ argument and that even he’s unsure he has the ability to fine them. He said he needs to consult with Erie County Attorney Michael Siragusa.
Lorigo (C-West Seneca) wasn’t satisfied with that answer. He said the county should simply enact the $2,000 civil penalty outlined in Ruthie’s Law, and let the nursing homes challenge it in court if they want to.
“This body didn’t pass a law for the Senior Services commissioner to interpret it. We passed a law for the Seniors Services commissioner to enforce it,” Lorigo told Shenk. “Telling us that you aren’t going to enforce the law because it’s your opinion or that you don’t believe you have legal authority to do so, doesn’t fly.”
Speaking after the meeting, Shenk refuted that he agrees with the nursing homes’ opinion or that he wouldn't enforce the law. Shenk, who has only been Senior Services commissioner since May, said he’s making a list of nursing homes actively refusing to comply and will then present it to the county attorney to move forward with enforcement.
“Once we develop that list of nursing homes that basically tell me, ‘No, I’m not going to do it,’ we’re going to play hardball and they’re going to have to answer for that,” Shenk said.
It had been unclear whether Ruthie’s Law would be addressed at a legislature meeting, as the issue had become somewhat partisan.
Only Republican caucus legislators signed the Ruthie’s Law letter this past fall, and Lorigo cast doubt on whether the Democratic caucus would agree to push the issue. Poloncarz spokesperson Peter Anderson even accused Republicans of being politically motivated, as Poloncarz, a Democrat, was running for re-election at the time.
When asked about Republicans’ Ruthie’s Law letter in November, Poloncarz noted Republicans were in the minority.
“When they were in the majority they treated the Democrats as if they didn’t exist,” he told WBFO. “We will certainly respond to their concerns. We’re enforcing Ruthie’s Law, but they have to learn they’re in the minority.”
Democrats at Thursday’s Health and Human Services Committee also asked questions about Ruthie’s Law. Legislator Lisa Chimera, a Democrat and chair of the committee, agreed the county has to work out its enforcement, but also put some of the onus on nursing homes.
“I think we need to be shocked that we passed legislation to ensure that our most vulnerable residents of Erie County are protected and yet they’re not complying,” she said. “So we will get it right, we’re going to work on this and we will get it right.”
Just 13 of the county’s 36 nursing homes had complied with Ruthie’s Law for the first-half 2019 reporting period at the time of WBFO’s October report. Another four nursing homes have since complied and one nursing home, Absolut Care of Orchard Park, closed.
The nursing homes have until the end of this month to submit paperwork for the second-second 2019 reporting period. The new compliance data is set to be posted on the county website the week of Feb. 3.
“My goal is that it would be better,” Shenk said of nursing homes’ compliance. “I can’t predict the future.”