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Attorney General: NYS DOH may have underreported COVID-19 deaths in nursing homes

In a report published Thursday, the AG used individual Western New York nursing homes as examples of statewide problems with PPE and staffing.

NEW YORK — New York State Attorney General Letitia James released a report Thursday on the state's nursing home response to COVID-19.

Among the findings during their investigation was that the New York State Department of Health's publicly reported data may have undercounted COVID-19 related deaths.

The AG's office has been investigating nursing homes in New York State based on allegations of patient neglect and other concerns that may have jeopardized the health and safety of residents and employees. As of November 2019, the attorney general's office received nearly 1,000 reports on a hotline set up for complaints. 

During the attorney general's office initial investigation, they found several areas of concern that include: 

  • 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; and
  • Government guidance requiring the admission of COVID-19 patients into nursing homes may have put residents at increased risk of harm

Investigators say a larger number of nursing home residents died from COVID-19 than the NYS DOH published in their public reports, and may have undercounted the deaths by 50%. 

The investigation also showed many nursing homes failed to comply with critical infection control policies that put residents at an increased risk of harm.  Among the findings:

  • Failing to properly isolate residents who tested positive for COVID-19;
  • Failing to adequately screen or test employees for COVID-19;
  • Demanding that sick employees continue to work and care for residents or face retaliation or termination;
  • Failing to train employees in infection control protocols; and
  • Failing to obtain, fit, and train caregivers with PPE.

According to the report,  a nurse from a Western New York facility reported to the attorney general: "that immediately prior to the facility’s first DOH inspection in late April, a nurse supervisor had set up bins in front of the units with gowns and N95 masks to make it appear that the facility had an adequate supply of appropriate PPE for staff. The nurse alleged that the nurse supervisor came in to work unusually early the day of the first inspection and brought out all new PPE and collected all of the used gowns. Although the initial DOH survey conducted that day did not result in negative findings, DOH returned to the facility for follow-up inspections, issued the facility several citations, and ultimately placed the facility in “Immediate Jeopardy"

Based on these findings, the attorney general is conducting investigations at more than 20 nursing homes across the state whose reported conduct during the start of the pandemic caused 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,” said Attorney General James. “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.”

NYS Department of Health Commissioner Dr. Howard Zucker issued this statement:

Dr. Zucker said the claim that the state undercounted COVID-19 deaths is not true. He also said the report contradicts itself on this. 

He wrote in part, "The word 'undercount' implies there are more total fatalities than have been reported; this is factually wrong." 

Dr. Zucker said the report's findings that nursing home operators did not follow the state's infection control protocols are consistent with DOH's own investigation. He added that violation of the protocols is "inexcusable" and that the DOH has already issued 140 infection control citations and more than a dozen immediate jeopardy citations.

Dr. Zucker's statement was lengthy, but he summarized saying in part, "All of this confirms that many nursing home operators made grave mistakes and were not adequately prepared for this pandemic, and that reforms are needed, which is why we proposed radical reforms to oversight of nursing home facilities in this year's State Budget."

Credit: AP
New York State Attorney General Letitia James takes a question after announcing that the state is suing the National Rifle Association during a press conference, Thursday, Aug. 6, 2020, in New York. James said that the state is seeking to put the powerful gun advocacy organization out of business over allegations that high-ranking executives diverted millions of dollars for lavish personal trips, no-show contracts for associates and other questionable expenditures. (AP Photo/Kathy Willens)

Senate Republican Minority Leader Rob Ortt is calling on New York Department of Health Commissioner Howard Zucker to resign. He issued this statement: 

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.

Congressman Tom Reed (R-23) had harsh words for the findings and for Governor Andrew Cuomo:

“Since May of last year, we have worked tirelessly to shine a light on New York’s disastrous nursing home policies to ensure such a colossal public health failure never happens again. 

Instead of working with us, Governor Cuomo’s only response has been to ruthlessly attack anyone who questioned the state’s disastrous policies, including those from his party, deny any wrongdoing, and hide damning nursing home fatalities data that would implicate his administration. 

Now, 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.”