Foxes should not be tasked with guarding the henhouse

Enforcement is needed to make laws and regulations work.

There may, for example, be law-abiding drivers who never think of speeding. But most of us consider it now and then, like when we’re late for an appointment. One of the things that checks us is realizing we could be arrested. This would make us even later for our appointment, and we’d have to pay a fine besides.  In short, consequences affect behavior.

As a large and complex society, we have laws that are meant to protect the most vulnerable among us — this includes the young and the old.

We wrote last month about a 12-year-old who tried to kill herself after, she and her parents say, she was bullied for five years at her school without getting help there.  Two of the years in which she says she was bullied, and her mother says incidents were reported to school administrators, the district reported zero incidents to the state.

The Dignity for All Students Act, which took effect in 2012, requires schools across New York State to self-report incidents of harassment.

Our story struck a nerve as it traveled through the Internet across the state. A parent from Syracuse, whose child had suffered from bullying and an unresponsive school district, wrote us, “The lack of oversight and the lack of teeth behind grossly underreported numbers is a failure of the Dignity Act. This act is a step in the right direction; unfortunately, it is too vague in some areas to truly be effective. Additionally, the state should be holding these schools accountable and I have yet to see that occur.”

So the problem here is twofold. First, the schools are charged with reporting incidents themselves. Some may want to preserve a good reputation and may purposely not report incidents. Others may simply be disorganized or not follow the state guidelines on how such incidents should be handled — respond, research, record, report, revisit. Still others may not understand that even bullying that does not fit one of the designated categories — like race, religion, or sexual orientation — must be reported under the Dignity Act.

Second, there is no enforcement mechanism in the law. Even if schools report data accurately, there is no oversight to see that the incidents are handled properly. In schools where they are not handled properly, this puts the burden solely on the parents. This leaves them to seek legal remedies like filing an appeal with the state’s education commissioner or taking the matter to court. If an aggrieved student doesn’t have parents with the stamina or wealth to pursue such measures, the suffering continues.

At the other end of the age spectrum, the state is responsible for conducting nursing home surveys to see that elderly clients are well cared for. Last month, the state comptroller released a revealing report on nursing home surveillance.

The comptroller’s audit, which covered the period from Jan. 1, 2012 to Sept. 17, 2015, found that the state’s Department of Health does a good job inspecting the facilities and recording what it finds. This is far better than a system of self-reporting; an outside agency takes an objective look at health and safety issues. During the audit period, over 39,000 surveys were conducted, and more than 50,000 citations were issued.

The problem, though, is in the lack of adequate consequences. The Department of Health can use a range of enforcement actions such as fines, directed plans of correction, and facility closure. The audit found, “Enforcement policies and procedures need to be strengthened to better protect the health and well-being of nursing home residents.”

Our Guilderland reporter, Elizabeth Floyd Mair, will take an in-depth look next week at the recently renovated Guilderland Center nursing home, a facility that had been plagued with citations in recent years. It is now run by new management, The Grand Healthcare System.

“I’m not going to say the former operators wanted to do a poor job,” said Bruce Gendron, regional administrator for upstate New York for The Grand Healthcare System, “but perhaps they didn’t have the skill set or the depth of knowledge, the depth of experience, that other providers may have…I walked into this place and it needed a lot of work…It needed a lot of staff, training, educaiton, and it needed guidance.”

We hope the million-dollar makeover is more than meets the eye. It is the care that the state is charged with overseeing.

The comptroller’s audit found delays of up to six years between when a violation was cited and when the resulting fine was imposed — a trend that has gotten worse in recent years. Further, the audit found that the health department chose not to levy fines for well over 80 percent of the cited violations. “These weaknesses,” the report said, “appear to undermine the incentive that fines can have as a deterrent to deficient practices, as well as the sense of urgency for correcting the deficiencies, particularly in addressing cases of repeated non-compliance.”

The audit looked at one particular facility, the Westgate Nursing Home in Rochester, which received more citations than any other, and found that, over time, citations first noted at the “Minimal Harm” level eventually rose to “Actual Harm” or “Immediate Jeopardy” levels of severity. The audit concluded, “When identified problems are not corrected timely, and enforcement actions cease to be an effective deterrent to continued non-compliance, the risk increases that issues will escalate in both scope and severity.”

The health department responded that it’s making improvement to its enforcement tracking system, and will consider fines at the “Greater than Minimal Harm” level, especially for facilities that demonstrate a pattern of repetitive citations.

We urge haste with these changes. Each citation represents someone’s suffering.

We close with this question: What good are laws if they’re not enforced?

— Melissa Hale-Spencer

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