Ruthie’s Law legal battle on pause due to COVID-19

Apr 2, 2020

The COVID-19 pandemic has put a halt to many court proceedings, including Erie County and nursing homes’ legal feud over Ruthie’s Law.

 

 

Eight local nursing homes filed a lawsuit against Erie County in February, arguing that the county’s nursing home transparency law was preempted by state law and therefore illegal. 

 

However, the county has asked to defer responding to the lawsuit and nursing homes have consented, according to Neil Murray, the nursing homes’ attorney and lead counsel for the New York State Health Facilities Association. 

 

“Right now Ruthie’s Law takes a backseat while everyone deals with more urgent matters,” Murray said in an email to WBFO.

 

County officials have been busy responding to the COVID-19 crisis, as more than 500 people in the county have tested positive and more than 100 are hospitalized. Meanwhile nursing homes have been given a slew of new state regulations, including visitor bans and mandated acceptance of residents who have COVID-19.

 

One of the nursing homes that filed the lawsuit, Elderwood at Amherst, opened a unit for COVID-19 patients this week. 

 

Plus, the COVID-19 pandemic has now suspended most civil matters anyway. New York State Chief Administrative Judge Lawrence Marks made an administrative order March 22 that no new filings can be made in non-essential court matters.

 

Erie County created Ruthie’s Law in 2017 after the beating death of Buffalo nursing home resident Ruth Murray — no relation to attorney Neil Murray. The law mandates nursing homes report injuries and abuse to the county twice a year and share their star ratings with prospective residents and their families.

 

However, nursing homes and their trade group, NYSHFA, have long argued that Ruthie’s Law conflicts with state law and should be voided. Section 2812 of New York Public Health Law says that counties cannot make regulations for nursing homes.

 

Nursing homes also argue that Ruthie’s Law is redundant. They already have to report injuries and abuse to the New York State Department of Health, while their star ratings are already publicly available on state and federal websites.

 

County officials seem to have doubts about Ruthie’s Law, too. The county has yet to fine a single nursing home for not complying with Ruthie’s Law, despite at times as many as two-thirds of the county’s 35 nursing homes being out of compliance.

 

Erie County Senior Services Commissioner David Shenk, who Ruthie’s Law gives the power to enact $2,000 civil penalties against nursing homes, admitted before the county Legislature in January he’s unsure he has the legal authority to enforce Ruthie’s Law.

 

WBFO’s report last October about the lack of Ruthie’s Law enforcement caused county legislators to pressure Shenk and Erie County Executive Mark Poloncarz, who originally proposed Ruthie’s Law, to fine nursing homes. 

 

On Feb. 13, Shenk announced he would finally begin fining nursing homes if they didn’t comply by the end of the month. A week later, nursing homes filed their lawsuit in New York State Supreme Court.

 

As part of the agreement to temporarily suspend the lawsuit, the county has also agreed to not fine nursing homes until a judge rules on the legality of Ruthie’s Law, according to Murray.

 

Erie County officials declined comment. A county spokesperson cited a Feb. 26 letter from county Attorney Michael Siragusa to legislators. In the letter, Siragusa said he has advised county officials to not publicly comment on Ruthie’s Law until the lawsuit is resolved.

 

“I hope you understand that this is necessary and prudent in order to adequately defend the County's interests,” Siragusa wrote to legislators. “The County’s position will be laid out in publicly filed court documents through the course of the litigation.”