Attorney general: Many N.Y. nursing homes fumbled COVID response, state underreported deaths up to 50%

Gov. Andrew Cuomo - AP PHOTO/HANS PENNINK, POOL, FILE

Gov. Andrew Cuomo - AP PHOTO/HANS PENNINK, POOL, FILE

ALBANY — The state Attorney General’s Office Thursday reported actions and inactions by some nursing homes boosted their residents’ death rate amid the COVID pandemic, and said the state Department of Health undercounted the death toll by as much as 50%.

The office is continuing to investigate more than 20 nursing homes where reported conduct during the late winter/early spring COVID surge was especially concerning.

Deaths attributed to the virus continue to occur at nursing homes across the state, 11 months after COVID was first confirmed in New York, and Attorney General Letitia James said it is important to know why nursing home residents have suffered the pandemic’s effects at such a disproportionate rate.

“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,” she said in a prepared statement accompanying the report. “Nursing home 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.”

The actual number of COVID deaths of New York nursing home residents remains undisclosed, or perhaps even unknown. 

The federal government places the total at 6,828, while the state placed it at 8,737 as of Wednesday, which the state itself says is incomplete, and it refuses to publicize the correct total.

James cited this refusal as obscuring the full impact COVID has had on the state’s nursing homes, but also said some nursing homes appear to have underreported deaths to the state.

There are 619 nursing homes in New York state. The Attorney General’s Office asked 62 (not randomly selected) facilities how many of their residents had died, and compared it to the state Department of Health’s tally for the same facilities.

Those nursing homes reported 3% more on-site deaths than the DOH did, but 56% more total deaths. This is because the DOH won’t report off-site deaths of residents, such as at hospitals or relatives’ homes.

The report also cites numerous violations of infection-control protocol and policy by the facilities themselves, and said understaffing by many facilities may have increased the number of infections and deaths.

The frail and elderly are particularly vulnerable to COVID-19 — 70% of New Yorkers killed by COVID have been 70 or older, and 18% were 60 to 69 years old at time of death.

The virus can spread easily in group living settings, and nursing homes have suffered accordingly.

But the report adds that immunity granted by Gov. Andrew Cuomo on March 23 makes it unclear whether any facilities or individuals can be held accountable for failing to protect residents in their care. 

PLACING BLAME

The report was compiled by the 275-strong Medicaid Fraud Control Unit in the Attorney General’s Office, which in early March began to investigate allegations of COVID-related neglect of residents in nursing homes. It set up a hotline to receive such complaints on April 23 and received over 950 through mid-November.

Complaints came from across the state but more heavily from communities with the highest levels of COVID infection.

The report stops short of absolute declarations of cause and effect but repeatedly cites the business practices of for-profit nursing homes as counter to the mission of resident care and infection control.

Many for-profit facilities allocate revenue first to profit, then to resident care, the report says. And they have a clear motive to maximize patient count while minimizing employee count — every empty bed and every additional staffer reduce profit.

Of the 401 for-profit facilities in the state, 280 entered the pandemic with poor federal ratings for employee-resident ratio. Those 280 accounted for 45% of New York facilities but 52% of nursing home COVID deaths as of Nov. 16.

A key finding of the report — that the state underreported nursing home deaths — might seem to indict the administration of Gov. Andrew Cuomo, who has been the subject of fierce partisan criticism over the high nursing home death toll, which roared back to life Thursday.

But it doesn’t, really. It says the count is incorrect, says that’s a problem, and doesn’t go any further. It seems to explain why the DOH count is wrong without directly faulting DOH for this.

Cuomo’s Department of Health has said all along it had underreported the deaths because it wants to verify the data before releasing a complete death toll. The report seems to indicate this is a valid concern — it cites multiple instances in which a nursing home gave DOH one set of numbers and gave her office a totally different set of numbers.

State Health Commissioner Dr. Howard Zucker made this point in a statement late Thursday afternoon. He said all known COVID deaths have been counted and added to New York’s death toll (34,742 as of Wednesday), including all nursing home residents who have died of COVID — even if some of the latter aren’t yet publicly categorized as nursing home deaths.

On April 23, as nursing home residents were dying from COVID in great number, Cuomo issued a news release announcing a joint investigation with fellow Democrat James into nursing homes that were violating his orders by not communicating with residents’ families about COVID test results and deaths within their walls. James issued her own news release the same day about her efforts to protect residents and their rights during the crisis.

The report her office issued Thursday contained multiple points of praise for the Cuomo administration for its handling of COVID’s impact on nursing homes, including:

  • DOH’s use of an online portal to find temporary staffing;
  • Help by DOH and other agencies to get personal protective equipment for nursing homes;
  • Cuomo ordering mass weekly testing at nursing homes;
  • DOH and other agencies developing better testing programs in the absence of federal leadership.

Other points in the report offer measured and indirect criticism:

  • The state reimbursement model incentivizes owners of for-profit facilities to maximize profit instead of prioritizing care;
  • The state’s infamous March 25 memo— that nursing homes not deny admission based on COVID-positive status — may have increased the risks to residents though it also freed up valuable hospital beds at the height of the pandemic;
  • Immunity from civil and criminal liability may have let facilities make financially motivated decisions amid the crisis.

INDUSTRY REACTION

James Clyne Jr., president of LeadingAge New York, which represents not-for-profit nursing homes, said the report was incomplete in some places, inaccurate in others.

“I think it was not at all fair or accurate to [not] address what nursing homes are going through in March and April with regards to testing and PPE,” he said.

He also rejected the idea that nursing homes were not following federal guidelines for infection control — they were in many cases following the guidelines for use when testing and adequate PPE were not available.

Nor did the report mention that the state cut Medicaid reimbursement to nursing homes in the midst of the pandemic, Clyne said.

“It seems like that might be relevant.”

Overall, he added: “There are some good parts to the report … but I don’t think they really capture what was going on in March and April with the sometimes conflicting advice we were getting.”

Stephen Hanse, CEO of the NYS Health Facilities Association — which represents 400 for-profit, nonprofit and government adult-care facilities statewide — said government leaders in New York didn’t give sufficient consideration to nursing homes in late winter 2020, as COVID was bearing down on the state.

Policymakers crafted a very hospital-centric response, he said, giving lower priority to nursing homes that were having the same problems as everyone else securing adequate staffing, testing and PPE.

Given all this, and the inherently vulnerable nature of nursing home residents, it was a recipe for trouble, Hanse said.

“Each element cannot be viewed in a silo. They’re all interconnected.”

He also rejected the broad blame placed on for-profit facilities, noting that there were five-star non-profit facilities with high death tolls as well.

“It’s completely wrong and completely false,” Hanse said. “The virus doesn’t discriminate on business model or location.”

He pointed to the larger picture: every New York nursing home has gotten at least one unannounced inspection by the DOH. The policies as a whole are working and good, though some of the individual failures cited anecdotally in the report — improper or inadequate PPE, failure to take a vistor’s temperature — no doubt did happen, and continue to happen.

Also: “What the report failed to acknowledge is the phenomenal job front-line workers are doing.”

POLITICAL REACTION

Cuomo, normally voluble on all things COVID-related, was on radio silence Thursday after the report was released. He issued a statement cautioning New Yorkers to keep warm in the coming cold snap but left discussion of the report to Zucker.

Reaction was fast and furious from those who’ve been hammering the governor since springtime on the nursing home death rate, as well as other interested parties.

A sampling:

  • “Governor Cuomo and Commissioner Zucker owe it to all of the families who lost their loved ones to testify under oath as to why the shocking information in this report was kept from the public for so long.” — State Assemblyman Chris Tague, R-Schoharie
  • “The report confirms what we have heard from members since the Spring of 2020: Many long-term care facilities lacked adequate PPE, basic infection control procedures, safe staffing, and quarantine protocols to mitigate the spread of COVID-19 within facilities. A key finding of the report is that poor staffing increased mortality rates, adding to the large body of evidence that shows safe staffing saves lives.” — New York State Nurses Association
  • “I have been adamant in calling for the removal of Gov. Cuomo’s emergency powers for months. If the Attorney General’s report tells us anything, it’s that it is time for members of the Legislature to be taken off the sidelines and able to be a part of the decisions that greatly impact the individuals who have put their trust into us as their representatives.” — Assemblywoman Mary Beth Walsh, R-Ballston
  • “Surprisingly, this report still does not disclose the full data being collected by the department, which includes hospitals transfers and has been repeatedly requested by the Legislature and others, including the Empire Center.” — Bill Hammond, Empire Center for Public Policy, plaintiff in lawsuit seeking to force state release of nursing home mortality data
  • “This is now more than a nursing home scandal, this is a massive corruption and coverup scandal at the highest level of New York State Government implicating the Governor, the Secretary to the Governor, the New York State Health Commissioner and the Governor’s staff. Every New Yorker deserves transparency, accountability and answers regarding the orchestration of this illegal coverup. I am calling on the New York Attorney General and the U.S. Department of Justice to issue subpoenas immediately of Governor Cuomo and his entire staff on all documentation and internal and external communications, including with any and all associations and lobbyists who have direct ties to the Governor’s senior team related to this corrupt and illegal coverup.” — U.S. Rep. Elise Stefanik, R-Schuylerville
  • “It’s clear that the Health Commissioner does not have the level of public trust and competence needed for him to stay in his position as under his watch thousands of New Yorkers needlessly. He must resign immediately.” — State Sen. James Tedisco, R-Glenville
  • “The Attorney General’s report on the state’s COVID-19 response in nursing homes is both frustrating and heartbreaking. A lack of personal protective equipment for staff and a lack of government guidance put COVID-19 positive patients into nursing homes and unnecessarily jeopardized the health of thousands of our loved ones living in nursing home.” — Assemblyman Angelo Santabarbara, D-Rotterdam
  • “The report released today by the Attorney General’s office is heartbreaking and further affirms that we need to get to the bottom of why so many nursing home residents lost their lives during this pandemic so that this never happens again. Families who have lost loved ones deserve answers.” — State Sen. Michelle Hinchey, D-Saugerties
  • “Today’s report on the inaccurate reporting of COVID-related deaths in nursing homes is alarming and underscores the need for overdue transparency and accountability in the state’s pandemic response with respect to congregate care. … We can begin correcting these actions, some of which have clearly had devastating consequences, by re-prioritizing vaccine distribution to nursing homes and congregate care settings, as thousands remain without access to vaccines.” — Assemblywoman Patricia Fahy, D-Albany
  • “This news is not all that surprising for those of us who have been following the facts, but the significance that New York’s left-wing Attorney General implicated him for his actions cannot be understated. These findings will have implications across New York State and they cannot be dismissed as ‘political attacks.’” — Nick Langworthy, New York Republican Party chairman

FINDINGS AND RECOMMENDATIONS

The report by the Attorney General’s Office contains multiple findings:

  • A larger number of nursing home residents died from COVID-19 than DOH data indicate.
  • Lack of compliance with infection control protocols put residents at increased risk of harm during the COVID-19 pandemic in some facilities.
  • Nursing homes that entered the pandemic with low staffing ratings from U.S. Centers for Medicaid and Medicare Services had higher COVID-19 fatality rates than facilities with higher staffing ratings.
  • Lack of nursing home compliance with the executive order requiring communication with family members caused avoidable pain and distress.
  • Unconventional treatment of dead bodies during the height of the crisis — including leaving them in their beds with the door locked and the air conditioner cranked up — did not violate law or industry practice but raised questions about internal planning, training and communication.

The report also contains multiple recommendations:

  • Ensure accurate public reporting by nursing homes of every resident death from COVID.
  • Enforce state law required adequate care and treatment of nursing home residents in times of emergency.
  • Prevent nursing homes from pressuring employees to work while infected with COVID or showing symptoms.
  • Ensure nursing homes provide adequate staffing to care for residents; set a required staff-to-resident ratio key positions.
  • Increase and enforce transparency in the operation of for-profit nursing homes including financial transactions and relationships.
  • Ensure nursing homes invest in effective training and hold operators accountable for failure to comply.
  • Support manufacturing of PPE.
  • Revoke provisions of the civil and criminal immunity granted to nursing homes in 2020.
  • Increase DOH staffing to ensure compliance and oversight.

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