WBFO reported in October that most Erie County nursing homes aren’t complying with Ruthie’s Law, yet none have been fined by the county’s Department of Senior Services. Last week, Senior Services officials invited WBFO to come along as they conducted unannounced visits on three of the noncompliant nursing homes. But some feel the county still isn’t doing enough to enforce the law.
Erie County Commissioner of Senior Services David Shenk stood outside Humboldt House Thursday afternoon. It’s a two-star, 170-bed nursing home located in Buffalo’s Hamlin Park Historic District.
It also doesn’t comply with Erie County’s Ruthie’s Law.
The 2017 law mandates nursing homes submit a report detailing injuries and abuse to the county twice a year, as well as submit proof they disclose their ratings to prospective clients, but Humboldt House hasn’t done so in over two years.
“First I was asking for the administrator, but it’s harder to catch them,” said Shenk as he stood outside Humboldt House and looked over a spreadsheet containing nursing home contact information.
Humboldt House hasn’t been returning Shenk’s calls and emails, so he simply walked inside the main lobby and asked for the administrator, Michelle Hardy.
A few minutes later, Hardy appeared and said hello. Shenk explained he was there to discuss Ruthie’s Law.
“I don’t have time to talk about that today,” Hardy told Shenk. “We can set up an appointment, but not today.”
Shenk then tried to hand Hardy a copy of Ruthie’s Law, but Hardy said she already had one and didn’t take it. Their interaction lasted less than a minute. Hardy then declined to speak with WBFO.
Shenk and another Senior Services official, Amanda Bender, conducted these unannounced visits on a total of three nursing homes not complying with Ruthie’s Law Thursday.
Humboldt House and another nursing home, Williamsville Suburban, declined to turn over their Ruthie’s Law paperwork. A third nursing home, Fox Run at Orchard Park, turned over all past-due paperwork after discovering it had been submitting the documents to the wrong email address.
Shenk said these were the three nursing homes that hadn’t answered him about why they weren’t complying. Altogether there are 17 nursing homes not complying with Ruthie’s Law, about half of all nursing homes in the county.
“I think it was good to have a face-to-face interaction,” Shenk told WBFO. “I think it lets them know the county is serious and that we take Ruthie’s Law serious.”
But some feel Shenk and the county administration aren’t taking Ruthie’s Law seriously enough.
Following WBFO’s report about the lack of Ruthie’s Law compliance last fall, Shenk has faced criticism from the county Legislature because he hasn’t fined any of the noncompliant nursing homes, despite the fact Ruthie’s Law empowers the Senior Services commissioner to enact civil penalties of up to $2,000.
“Unannounced visits are a good way to surprise people, but the fact of the matter is he still hasn’t gone so far as to use the most important tool in Ruthie’s Law, which is the levying of fines,” said Legislative Minority Leader Joseph Lorigo, C-West Seneca, who voted for Ruthie’s Law in 2017.
Lorigo and others in the Legislature's Republican caucus wrote a letter to Shenk and Erie County Executive Mark Poloncarz, who proposed Ruthie’s Law, demanding an explanation for the lack of fines. They also directly questioned Shenk in a Health and Human Services Committee meeting last month.
“It boggles my mind that after all of the pressure, after all of the scrutiny, we’re still not levying fines, and trying different non-fining tactics,” Lorigo said. “What are we waiting for?”
Nursing homes say they know exactly why the county hasn’t fined them.
The New York State Health Facilities Association (NYSHFA), which represents nursing homes across the state, argues Ruthie’s Law is an invalid law. Section 2812 of New York Public Health Law says that counties can’t make regulations for nursing homes.
NYSHFA also argues Ruthie’s Law is duplicative. Nursing homes already have to report abuse and injuries directly to the New York State Department of Health, and nursing home ratings are already publicly available on federal and states websites.
“I would believe that the county, the attorneys for the county, are aware of the State Public Health Law Section 2812 and realize that the county does not have the authority to enforce an unenforceable law,” said NYSHFA President and CEO Stephen Hanse.
Even Shenk appears to have some doubts about the enforceability of Ruthie’s Law. He told the the Health and Human Services committee last month he’s unsure he has the legal authority to levy fines and is consulting with Erie County Attorney Michael Siragusa.
“At this point I have submitted a letter to the county attorney’s office and he’s reviewing it now and he’ll get back to me shortly and then we’re going to go on to the next step,” Shenk said Thursday when asked about the lack of fines.
In some cases, Shenk’s surprise visits Thursday went well.
Fox Run at Orchard Park is a five-star facility, the highest level, but wasn’t submitting its Ruthie’s Law paperwork. Shenk sat down with Fox Run Director of Nursing Janine Fino and discovered staff had been submitting documents to the wrong email address by misspelling Shenk’s email address. Shenk said people often misspell his last name.
Fox Run then turned over all five of their past due Ruthie’s Law reports. The county website now lists Fox Run as in compliance with Ruthie Law, bringing the total nursing homes in compliance to 19 of 35.
Fino said Fox Run does not see any problem complying with Ruthie’s Law.
“I’m already reporting to the state, it’s not a big deal for me to send David an email telling him what’s going on here,” she told WBFO. “It’s not a secret. We do a good job here.”
However, things didn’t go as well at Williamsville Suburban, a one-star facility. Administrator David Goldman told Shenk he can’t give him any Ruthie’s Law paperwork because of guidance from NYSHFA.
“They’re challenging it, saying you guys don’t have the authority to request this stuff. That was the last email I got,” Goldman told Shenk, adding his “hands are tied.” He declined to speak with WBFO.
After the Williamsville Suburban visit, WBFO again asked Shenk about the lack of fines and NYSHFA arguing Ruthie’s law is invalid.
“I think all of us in Erie County, whether it’s in the administration or down at the legislature, we all would love to see all the nursing homes comply with Ruthie’s Law,” he said. “That would be the best thing for everyone involved.”
He also said the visits helped.
“All in all I thought it was a good day. It could have been better, but I’m glad with where we’re at. We’re in a better position today than we were yesterday.”