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April 26, 2017

Erie County Takes Action Against Nursing Homes

Erie County is adding to the myriad of laws already imposed on nursing homes by the State and Federal government. On March 24th, Erie County Executive Mark C. Poloncarz announced several actions that will affect nursing homes located across the County. The centerpiece of these actions is "Ruthie's Law" which, if passed, will require nursing homes to notify a resident's family within one hour of determining the resident suffered an injury severe enough to require hospital care. Ruthie's Law will also require nursing homes to disclose their NYS Department of Health ("DOH") "scores" to every applicant seeking placement at their facility, and to provide injury and fatality data to the Erie County Commissioner of Senior Services.

The Law is named after Ruth Murray, a nursing home resident with Alzheimer's disease who sustained serious injuries after being assaulted by another resident when she mistakenly walked into the resident's room. She died three days later from her injuries, age, and poor health. Ms. Murray's family allegedly did not learn about the severity of her injuries until they were informed by hospital physicians several hours later. The nursing home was fined $10,000 by the DOH, which is currently the largest penalty allowed under State law.

Poloncarz is also seeking support for a newly-proposed State law that will increase the maximum nursing home fine to $50,000. Prior to 2008, the maximum fine the DOH could impose on nursing homes was $2,000 per incident, even for those incidents involving serious injury or death. The law was temporarily amended in 2008 to allow the DOH to assess fines of up to $5,000 for some repeat violations, and $10,000 for violations resulting in serious physical harm to a resident. The 2008 amendment is scheduled to expire this month. However, legislation extending the 2008 amendment, or even increasing maximum allowable fines, appears certain.

Poloncarz also issued a new Executive Order that creates a website publicizing information about all nursing homes located in Erie County. The site, which was launched last week, allows the public to search for a specific nursing home and immediately be informed of its "rankings" or "scores" as assigned by the DOH. The site also lists past infractions of the nursing home. The site will enable families to more easily research the quality of local nursing homes, as measured by the State.

Statewide organizations who represent nursing homes, such as LeadingAge New York and the New York State Health Facilities Association, have already spoken out against Ruthie's Law. They argue that Section 2812 of New York's Public Law prevents counties, towns, villages and cities from enacting or enforcing regulations and standards applicable to nursing homes. They also argue that Ruthie's Law is unnecessary as federal regulations already require nursing homes to immediately notify a resident's representative(s) when the resident is involved in an accident or has a significant change in health.

The legal arena applicable to nursing homes continues to become more complicated. Barclay Damon, LLP has experienced health care lawyers who can properly advise nursing homes on how to navigate through this arena, as well as experienced health care litigators who will vigorously defend nursing homes against an ever increasing amount of government and civil actions.

If you have questions or require further assistance regarding the information contained in this Legal Alert and the impact on your organization, please contact Eric C. Naegley at or Susan A. Benz, Co-Chair of the Barclay Damon Health Care & Human Services Practice Area at or Melissa M. Zambri, Co-Chair of the Barclay Damon Health Care & Human Services Practice Area at


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