Fight for nursing home COVID death data goes to court; Precise numbers remain unreleased

The Fulton County Rehabilitation & Nursing Facility Friday. Credit: Peter Barber/Staff Photographer

The Fulton County Rehabilitation & Nursing Facility Friday. Credit: Peter Barber/Staff Photographer

ALBANY — COVID deaths in nursing homes is an issue that just won’t fade away.

For political foes of Gov. Andrew Cuomo, it’s a scarlet letter to pin on his chest.

For others, it is an attempt to better understand why so many elderly residents of these facilities have died in the pandemic, rather than politics. They want a full release of data from the state to accomplish this.

The Cuomo administration is relentlessly pushing back, saying the drive is a political attack and the data are not being released because they’re incomplete or their accuracy hasn’t been confirmed.

With marathon legislative hearings on the issue in August yielding no new numbers on the total death toll, and Freedom of Information Law requests going unanswered, a fiscally conservative Albany think tank sued for release of the data in late September, joined by a Republican state senator from Glenville who has been plugging away at the same goal for months, so far in vain.

While New York’s nursing home death toll is regularly placed above 6,000, the various numbers offered are just estimates.

Also, New York state isn’t including in the death toll patients who took ill in a nursing home but died elsewhere, such as in a hospital.

This limits the effectiveness of such a list, preventing a true measure of how many people died at such facilities, which in turn limits efforts to flag facilities that fared much better or much worse than average, and analyze what they did right or wrong.

It’s not an impossible distinction to make — Warren County, for example, provides a breakdown in its daily Facebook update of where each deceased COVID patient lived before death and where they died.

Bill Hammond, senior fellow for health policy at the Empire Center for Public Policy, has been pushing for months to get the state Department of Health to release such a breakdown at the statewide level. The state’s refusal led to the Empire Center’s legal action in State Supreme Court, Albany County.

What’s particularly exasperating, Hammond said, is that the state has the data: Elder-care facilities report two mortality figures on their daily Health Emergency Data Response System filings — deaths on-site and deaths off-site.

The state is tallying and reporting the on-site deaths but refusing to release the number of off-site deaths.

“It sure feels like they’re being defensive,” Hammond said.

The Empire Center’s lawsuit notes that by reporting only deaths that occur in nursing homes, the state has a lower tally that compares very well to other states.

Cuomo and top aides routinely point out New York is 46th among the 50 states for nursing home COVID deaths as a percentage of total COVID deaths. But they don’t add any disclaimer about it being a partial total.

That defensiveness is the heart of the matter for some critics of Cuomo, a suggestion that policies and actions taken or not taken by Cuomo and his administration boosted the death toll.

Asked for comment on the Empire Center’s lawsuit, one state spokesman attacked the Empire Center, another derided State Sen. James Tedisco, R-Glenville, who filed an amicus brief supporting the lawsuit.

One of their statements also said that the data will be released, but not until it is analyzed and found to be accurate and complete.

Earlier in the crisis, the Department of Health expanded on this same point to The Daily Gazette — more than 600 nursing homes were compiling and submitting data daily, possibly making errors in a crisis setting, and some deaths could be misclassified or counted twice if the state did not analyze the data correctly.

For one nursing home industry group, the death data is more of a red herring than a scarlet letter.

It’s a meaningless number by itself, said James Clyne Jr., president of LeadingAge New York, as it provides no indication where a resident got infected and therefore is of limited use in determining whether a particular facility is doing a particularly good or bad job controlling contagion within its walls.

LeadingAge New York counts about 200 nursing homes in its membership, or roughly a third of all such facilities in the state.

“The bottom line is, neither number tells the whole picture, which is what frustrates me,” Clyne said. “You have to go through five or six numbers to get the whole picture.”

Two examples:

Many facilities took in COVID-positive patients as new residents; their subsequent death elevated those facilities’ death tolls, even though any mistakes that led to infection were made elsewhere.

Some facilities are more diligent than others about assembling paperwork. So they’d be more likely to have a drawerful of do-not-transfer orders completed by residents who don’t want to die in a hospital. So their on-site death count would be elevated compared with nursing homes that sent most of their very-ill residents to hospitals.

Nonetheless, Clyne said, LeadingAge would like to know the statewide total of deaths on-site and off-site. It hasn’t asked its members to compile such stats, as that would be an onerous task, but the organization asked the state to provide it the numbers.

The state has refused, he added.

The desire, the need to understand why so many nursing home residents died of COVID is heightened by the fact that not every nursing home was affected. There is some consensus that the number of COVID infections in a nursing home generally correlates to the number in the surrounding community, but it doesn’t always.

Albany County and Schenectady County, for example, each own and operate a nursing home. The two neighboring counties have had a similar rate of infections as a percentage of population. Their two nursing facilities have a similar number of beds, both have unionized workforces, and they’re less than 11 miles apart.

Albany County’s Shaker Place Rehabilitation and Nursing Center has had 66 resident infections and 15 deaths; Schenectady County’s Glendale Home has had zero resident infections and zero deaths.

Or compare nursing homes within a single corporate family. Bronx-based Centers Health Care operates facilities all over upstate New York. A federal database indicates that as of Sept. 20, its Gloversville facility had had 111 confirmed infections and 27 resident deaths, accounting for a third of all infections in Fulton County and nearly the entire death toll there so far in the pandemic.

But as the Gloversville site was struggling, Centers Health Care’s larger facility in Schenectady maintained a record of zero infections. Then someone got sick at the Schenectady site, but the staff apparently contained the virus; the tally there stood at seven residents infected and two dead as of Sept. 20.

For Cuomo critics, the rancor over nursing home deaths in New York often boils down to a single thing: The state’s order on March 25 that nursing homes admit COVID-positive elderly as residents. The state’s rebuttal to those critics has been, in part, semantic and technical:

It wasn’t Cuomo’s order, it was the state Department of Health’s order; it didn’t supersede state law barring nursing homes from accepting residents they can’t care for properly — ie, those that they couldn’t keep from spreading disease; the state had to clear hospital beds for the expected surge of infections, which as it turned out, never happened; and it was a federal guideline also followed by many other states.

(Cuomo has been a relentless critic of federal guidelines all through the pandemic, and recently told a reporter that it might have been “stupid” for the state to follow the feds on this one.)

Another sticking point for critics: Cuomo barred hospitals from discharging COVID-positive patients to nursing homes on May 10, which could be viewed as acknowledging the danger of the March 25 order.

Yet another sticking point: The state Department of Health issued a report in early July that found its March 25 order could not have caused the wave of nursing home deaths, based on timing and other statistics.

Aside from the optics of an agency investigating itself and exonerating itself, critics seized on the fact that the DOH was simultaneously saying it didn’t have the full picture of nursing home deaths and presenting what it called a definitive analysis of the causes of those deaths.

The cause, according to the July 6 state report, was that nursing home staff and visitors who were unknowingly infected with COVID-19 transmitted the virus to facility residents early on in the pandemic.

Clyne at LeadingAge said his members firmly believe this did happen. He also said many of his member facilities took in COVID-positive transfer residents, and would have done so without the state ordering them to do so — it’s their mission and business to provide care.

The real problem, he said, is that the pandemic arrived before it was detected, and that there was not enough official guidance once it was detected.

“People were thinking it was [like] the flu,” he said. “Completely wrong.”

So staff wore masks and gloves … and they wore the same masks and gloves from one room to the next. Then they couldn’t get enough gloves and masks. And they couldn’t get COVID tests early on.

Many New Yorkers got sick and died in this early stage, both in nursing homes and in the communities around them.

Clyne said he doesn’t blame state leaders for this, or for their lack of guidance, because so little was known about COVID at the time. But he doesn’t want his member facilities or their staffs being blamed, either.


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One Comment


“The Cuomo administration is relentlessly pushing back, saying the drive is a political attack and the data are not being released because they’re incomplete or their accuracy hasn’t been confirmed. ”

Until the end of the universe all data is incomplete . What is important is does enough data exist to enable an analyst to make reason, not perfect, interpretations.

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