ALBANY — The state Department of Health and Attorney General’s Office will investigate nursing homes that don’t follow executive orders such as reporting COVID-19 test results and deaths to their residents’ families.
Gov. Andrew Cuomo’s announcement of the initiative Thursday is the latest of many steps undertaken by state officials as the death toll soars in elder-care facilities.
An online county-by-county tally maintained by the state Department of Health showed 2,902 COVID-related deaths in nursing homes and 638 in adult-care facilities on Thursday. However, the data are self-reported by the facilities themselves and in some cases are inaccurate, outdated or both.
A companion list shows the number of deaths at each facility by name, but only if there have been five or more deaths there. Here, too, the data are not current.
Rensselaer County officials, for example, reported the fifth death at Diamond Hill Nursing and Rehabilitation on Thursday. But the state tally shows only one nursing home death in all the Rensselaer County and does not include Diamond Hill among the named facilities.
The state’s stance on nursing home data has been evolving, with officials first refusing to report data, then reporting only county-level numbers, then reporting only certain facilities by name.
Nursing home deaths have become an increasingly prominent part of Cuomo’s daily briefings on the COVID-19 crisis, with reporters peppering him on what the state is going to do. His response has been that these are mostly private facilities that are paid to perform a task, and they must perform it within state and federal regulations.
These include notifying family members of residents about positive tests or deaths, providing masks and other personal protective equipment for employees, quarantine of infected residents, lockout of all visitors, dedicated staff for COVID-positive patients, temperature checks of employees arriving for their shifts and transferring to another facility any patients they cannot care for.
“The state Department of Health and the attorney general are going to be commencing an investigation to make sure all of those policies are in place and being followed,” Cuomo said. “If they’re not being followed, they can be subjected to a fine or they can lose their license. It’s that simple.”
Cuomo’s executive orders and directives apply specifically to nursing homes, which are Article 28 facilities. Assisted living and other elder-care facilities are not Article 28.
Most of the deaths in the state have been at nursing homes rather than adult care facilities — 2,902 vs. 638 by the state’s incomplete tally.
Schenectady County is one of the exceptions: Zero nursing home deaths and seven adult care deaths by the same incomplete tally.
COUNTY HEALTH DEPARTMENTS
Counties have some insight through the activities of their health departments but they do not have oversight. Elder-care facilities are regulated by the state and federal governments.
Schenectady County Manager Rory Fluman said the county does work with elder care facilities within its borders in the interest of public health.
“You can assess pretty quickly if something is going on in a nursing home,” he said. “Adult living/assisted living facilities are where the problems are.”
The decision in late winter to lock visitors out of nursing homes in the Schenectady area probably came just in time, before there was widespread contagion within the community, Fluman said. “The virus was moving that quickly.”
Fluman has opted not to publicly detail infections and deaths at facilities within Schenectady County borders, except for the nursing home the county itself owns and operates — the Glendale Home, where no residents have tested positive. He wouldn’t say if any staff have previously tested positive, but said none currently have the virus.
As a longtime occupational therapist who has worked in nursing homes over the years, he’s aware of how fragile the residents are, and how quickly the virus can spread among them. He’s optimistic the nursing home operators locally have the situation under control — they’re in regular contact with each other and “everybody knows when to cry for help now.”
Albany County also tracks COVID-19 infections at elder care facilities as part of the sweeping effort to trace and control the spread of the virus — the more the Health Department knows, the more it can do, in the community if not in an individual facility.
The county has issued regular updates on the COVID cluster at the county-owned nursing home, Shaker Place, where 27 residents and 13 employees have tested positive, and two residents have died.
In response to repeated media questions, officials released a list of infections at private facilities within county borders, again with the caveat that the data are 2 days old and potentially inaccurate: Daughters of Sarah, one employee; Hudson Park, one resident; Our Lady of Mercy, 11 residents, eight employees; Teresian House, 23 residents, unknown employees; The Grand, nine residents, four employees; Eddy Village Green, one employee.
And so it goes — from one county to the next, information can be detailed or curtailed.
- Schenectady County moves to protect privacy;
- Albany County does the same and then relents;
- Rensselaer County provides extensive detail on all COVID cases, including at nursing homes;
- Columbia County (where eight nursing home residents are reported dead) provides periodic updates on one facility by name;
- Warren County (where four of the eight COVID deaths have been in elder-care facilities) identifies only the type of facility, nursing or assisted living.
Two associations representing the elder-care industry in New York state said Thursday that the state has not provided needed help, either with fighting the virus or reporting it.
Part of the confusion on data is poor instructions by the state on what it wants, their presidents told The Daily Gazette.
James Clyne, president and CEO of LeadingAge New York, said the data are hard to collect without subjective judgement by staff, so the reporting is inconsistent from one facility to the next. Even the testing is not the same at every site. As a result, the daily tally published by the state can be misleading, he said.
“I think you could do a list that makes sense. This list seems to lack context.”
Stephen Hanse, President and CEO of the New York State Health Facilities Association and the New York State Center for Assisted Living, said state Health Commissioner Dr. Howard Zucker convened a rush conference call Saturday because elder care facilities were having so much trouble with the questions on the daily Health Emergency Response Data System report, and clarified what was sought.
Hanse also raised the same privacy concerns that Cuomo, Zucker and others have cited: HIPPA, a federal law protecting patient records. He noted that the level of disclosure being demanded now was not sought in the 2018 flu season, when 35,000 residents at elder care facilities died.
“Prior to this, you had no right to know how my aunt died,” he said.
Most importantly, Hanse feels that the state has given the bulk of its attention and resources to hospitals during this crisis, and not enough to nursing homes packed with the most vulnerable population.
He doesn’t object to the state publishing names of nursing homes and numbers of dead residents in each, but he wants something to come of it — specifically help from the state. Some New York City facilities have seen dozens of residents deaths, and Cobble Hill Health Center — a 364-bed Brooklyn nursing home — leads the state at 55 deaths. This suggests a problem on site, he said.
“Simply releasing the data does nothing to diminish the spread of COVID-19,” Hanse said.
Cuomo in his daily briefings has repeatedly made the point that nursing homes are a critical focus point in the COVID-19 crisis, packed with the most vulnerable members of the population.
(“Nursing homes are our top priority. They have been from day one,” he said Thursday.)
But he also made clear that the nursing homes must fix themselves.
Reporters at the briefings recently seem to have been looking for a state solution as they pressed him on nursing home fatalities, and he has rebuffed them each time.
He had another back and forth with them Thursday:
Q: Regulating nursing homes is the Department of Health’s job. Why haven’t they done it already?
A: No, they do do it. On an ongoing basis.
Q: So what went wrong? The state had a ton of regulations.
A: Nothing went wrong, mother nature brought a virus. They have to deal with the situation.
Q: What should they have done differently when new guidelines were produced?
A: They should have followed the rules.
Q: Did any nursing homes object?
A: They don’t have the right to object.
Q: What if they can’t get PPE?
A: We have given them thousands and thousands of pieces of PPE. You’re right, it’s their responsibility, but it’s a national problem.
Q: Will the state look into why some nursing homes have so many more deaths than others?
A: Yes, that will be one of the criteria used by the Department of Health and Attorney General.