NY AG: State undercounted nursing home COVID-19 deaths by 50%, NYS Health Commissioner responds

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NEW YORK STATE, N.Y. (WROC/WIVB) — New York Attorney General Letitia James released a report on her office’s ongoing investigations into nursing homes’ responses to the COVID-19 pandemic on Thursday.

According to the report, a larger number of nursing home residents died from COVID-19 than the New York State Department of Health’s published nursing home data reflected and may have been undercounted by as much as 50%. The investigations also revealed that nursing homes’ lack of compliance with infection control protocols put residents at increased risk of harm, and facilities that had lower pre-pandemic staffing ratings had higher COVID-19 fatality rates.

Based on this investigation, Attorney General James is investigating over 20 nursing homes whose reported conduct during the first wave of the pandemic ‘presented particular concern.’

“As the pandemic and our investigations continue, it is imperative that we understand why the residents of nursing homes in New York unnecessarily suffered at such an alarming rate,” Attorney General James said in a statement. “While we cannot bring back the individuals we lost to this crisis, this report seeks to offer transparency that the public deserves and to spur increased action to protect our most vulnerable residents. Nursing homes residents and workers deserve to live and work in safe environments, and I will continue to work hard to safeguard this basic right during this precarious time.”

According to the report, the Office of the Attorney General found that:

  • A larger number of nursing home residents died from COVID-19 than DOH data reflected
  • Lack of compliance with infection control protocols put residents at increased risk of harm
  • Nursing homes that entered the pandemic with low U.S. Centers for Medicaid and Medicare Services (CMS) Staffing ratings had higher COVID-19 fatality rates
  • Insufficient personal protective equipment (PPE) for nursing home staff put residents at increased risk of harm
  • Insufficient COVID-19 testing for residents and staff in the early stages of the pandemic put residents at increased risk of harm
  • The current state reimbursement model for nursing homes gives a financial incentive to owners of for-profit nursing homes to transfer funds to related parties (ultimately increasing their own profit) instead of investing in higher levels of staffing and PPE
  • Lack of nursing home compliance with the executive order requiring communication with family members caused avoidable pain and distress
  • Government guidance requiring the admission of COVID-19 patients into nursing homes may have put residents at increased risk of harm in some facilities and may have obscured the data available to assess that risk

“Preliminary data obtained by OAG suggests that many nursing home residents died from COVID-19 in hospitals after being transferred from their nursing homes, which is not reflected in DOH’s published total nursing home death data. Preliminary data also reflects apparent underreporting to DOH by some nursing homes of resident deaths occurring in nursing homes. In fact, the OAG found that nursing home resident deaths appear to be undercounted by DOH by approximately 50%.”

According to the attorney general’s office, in one instance, a facility reported five confirmed and six presumed COVID-19 deaths at the facility as of August 3 to DOH. However, the facility reported to OAG a total of 27 COVID-19 deaths at the facility and 13 hospital deaths — a discrepancy of 29 deaths.

The report says the office also received numerous complaints that some nursing homes failed to implement proper infection controls to prevent the spread of the virus.

“For instance, OAG received a complaint that at a for-profit nursing home located north of New York City, residents who tested positive for COVID-19 were intermingled with the general population for several months because the facility had not yet created a “COVID-19 only” unit. At another for-profit facility on Long Island, COVID-19 patients who were transferred to the facility after a hospital stay and were supposed to be placed in a separate COVID-19 unit in the nursing home were, in fact, scattered throughout the facility despite available beds in the COVID-19 unit.”

Officials also said several reports were received about nursing homes not properly screening staff.

There are 619 nursing homes in New York, and 401 of these facilities are for-profit, privately owned, and operated entities. Of the state’s 401 for-profit facilities, more than two-thirds — 280 nursing homes — have the lowest possible CMS Staffing ratings, according to the attorney general.

As of November 16, 3,487 COVID-19 resident deaths (over half of all deaths) occurred in these 280 facilities.

“Despite these disturbing and potentially unlawful findings, due to recent changes in state law, it remains unclear to what extent facilities or individuals can be held accountable if found to have failed to appropriately protect the residents in their care,” a statement from the Attorney General James reads.

In March of 2020, Gov. Andrew Cuomo created limited immunity provisions for health care providers relating to COVID-19. The Emergency Disaster Treatment Protection Act (EDTPA) provides immunity to health care professionals from potential liability arising from certain decisions, actions and/or omissions related to the care of individuals during the COVID-19 pandemic.

“In order to ensure no one can evade potential accountability, Attorney General James recommends eliminating these newly enacted immunity provisions,” a statement from the office reads.

Full report:

In a statement, New York State Department of Health Commissioner Howard Zucker says the “DOH has consistently made clear that our numbers are reported based on the place of death. DOH does not disagree that the number of people transferred from a nursing home to a hospital is an important data point, and is in the midst of auditing this data from nursing homes,” said Zucker.

Read the commissioner’s full response here.

Some politicians have released statements in response to the report:

“The report released today by the Attorney General is confirmation for the thousands of families who lost loved ones to COVID-19 in New York nursing homes. For months, Governor Cuomo and his administration have refused to be transparent or take any responsibility for actions they have taken during this public health crisis — including the deadly March 25, 2020 order to send COVID-positive patients into nursing homes.

“By underreporting COVID deaths in nursing homes by as much as 50 percent, the Department of Health has betrayed the public trust. To repair that broken trust, I am calling on Health Commissioner Howard Zucker to resign.”

Sen. Rob Ortt

“Attorney General Letitia James’s damning report on New York nursing home deaths has exposed one of the most egregious cover ups in New York State history. There must be a price to pay. “The report confirms what millions of New Yorkers already suspected: Governor Andrew Cuomo and his administration willfully manipulated data to hide the number of deaths caused by their inexplicably foolish policy decisions. “The pain suffered by thousands of New York families who lost loved ones because of the Governor’s poor decisions, compounded by Mr. Cuomo’s appalling braggadocio over the past year about his handling of the Covid-19 crisis, is made more painful still by this report. The Governor tried to wash his hands of their deaths, and now he has been found out. “An honorable leader would resign under such circumstances.”

New York State Conservative Party Chairman Gerard Kassar

“The calls for truth and transparency from grieving families were finally answered today with the release of the Attorney General’s report on the undercounting of deaths of nursing home residents from COVID-19. After months of stonewalling, blame-casting and diversion by the Governor and Health Commissioner, we have confirmation that COVID deaths in nursing homes were undercounted by as much as 50 percent.

“While this news cannot undo the damage and precious lives that were lost through reckless decisions, including the deadly March 25, 2020 order to send COVID-positive patients into nursing homes, these revelations will help ensure better oversight and vigilance going forward.

“While I echo the call of Leader Ortt and my colleagues for the resignation of the Health Commissioner, this in no way absolves the Governor of any wrongdoing. Nothing in the Cuomo administration happens without his knowledge and consent. We, as a legislative body, need to hold him accountable for this horrific tragedy and the bad decisions that led up to it.”

Sen. George Borrello

“The report issued by the Attorney General sheds a disturbing light on the true number of COVID-19 deaths in New York nursing homes.  It illustrates the lack of transparency by the governor’s office and the administration’s failure to adequately protect our most vulnerable residents. 

The policies and procedures put in place at nursing homes…from the deadly March 25, 2020 order to send COVID-positive patients into these facilities, to the harsh restrictions on family visitation…have caused great hardship and suffering.  It is time to end the governor’s unilateral control of the state’s pandemic response and return to our system of checks and balances in state government.” 

Sen. Patrick Gallivan

“It should not take an investigation by the Attorney General to receive accurate information regarding nursing home fatalities during the pandemic. We need answers immediately from the Department of Health. I am calling on Dr. Zucker to appear before the Senate Health Committee and provide full and complete answers. It is what the public deserves. Today’s report from the Attorney General is a damning account of how nursing homes are operated and regulated in New York State. There was an active effort to shield the fact that nursing home residents were not safe during the pandemic – and in many instances, they were not even safe before the pandemic. The for-profit nursing home industry has complained for years that they do not need more regulations. It is clear now that the Department of Health regulators have become too cozy with for-profit nursing home operators, and it is putting the lives of workers and residents at risk. We need immediate action now to reform our nursing home industry. For years I have been calling for safe staffing legislation to project our nursing home workers and residents. We must hold for-profit nursing homes accountable.”

Sen. Sean Ryan

“This is just another one of many knee-jerk errors that Cuomo will continue to cover-up to maintain his facade of competence. He was a failed governor before COVID and still is one after. He now has even more blood on his hands.”

Larry Sharpe, former candidate for Governor

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