New York Attorney General: State undercounted nursing home COVID-19 deaths

Coronavirus

ALBANY, N.Y. (WROC/AP) — The actual number of COVID-19 deaths in nursing homes statewide doesn’t match the data from the department of health, according to the New York State Attorney General’s office.

New York State Attorney General Letitia James released a report Thursday in regards to her office’s ongoing investigation into nursing homes and the state’s COVID-19 response.

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 data reflected, and may have been undercounted by as much as 50%.

Her investigators looked at a sample of 62 of the state’s roughly 600 nursing homes. They reported 1,914 deaths of residents from COVID-19, while the state Department of Health logged only 1,229 deaths at those same facilities.

If that same pattern exists statewide, James’ report said, it would mean the state is underreporting deaths by nearly 56%.

Part of the gap is explained by a decision by New York’s health agency to exclude from its count the number of nursing home patients who die after being transferred to hospitals. Hospital and nursing home officials say the state has ready access to that figure.

Health Commissioner Howard Zucker has said at times that the state is working on compiling that data. His department has not responded to repeated requests by The Associated Press for that figure in recent weeks.

As of Tuesday, the state was reporting 8,711 deaths in nursing homes statewide.

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.

Dr. Zucker released a response Thursday afternoon, saying in part “New York State Department of Health has always publicly reported the number of fatalities within hospitals irrespective of the residence of the patient, and separately reported the number of fatalities within nursing home facilities and has been clear about the nature of that reporting… The word ‘undercount’ implies there are more total fatalities than have been reported; this is factually wrong.”

The AG 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 COVID-19 deaths in New York) 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.

Senate Republican Leader Rob Ortt released a statement on Thursday calling for the resignation of Dr. Zucker.

“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%, the Department of Health has betrayed the public trust. To repair that broken trust, I am calling on Health Commissioner Howard Zucker to resign.

Representative Tom Reed released the following statement as well:

“The state’s incompetence and gross negligence have been confirmed by its own Attorney General. 

As we called for last year, a full federal investigation into New York’s disastrous handling of the COVID-19 crisis is desperately needed. Given the state’s refusal to be transparent, we must also hold additional congressional hearings to fully understand the scope of the state’s incompetence, as well as the state’s efforts to obfuscate the truth. Governor Cuomo’s lies cannot go on. To the New Yorkers who lost a loved one due to these failed policies, know that this is one step closer towards justice.” 

Full report:

Full statement from Dr. Zucker:

Check back with News 8 WROC as we will continue to update this developing story.

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