October 26, 2021

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New York underreported COVID-19 nursing home deaths by as much as 50%, AG report says – Times Union

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The 76-page report released Thursday morning follows a months-long investigation by the attorney general’s office’s into allegations of patient neglect and other conduct that jeopardized the health and safety of residents and employees, including information that nursing homes failed to properly isolate residents who tested positive for COVID-19 and demanded sick employees continue to work or face retaliation or termination.

Beyond the health department’s undercounting of deaths, the investigation also found nursing homes’ lack of compliance with infection-control protocols put residents at risk, and facilities that had lower pre-pandemic staffing ratings had higher COVID-19 fatality rates. James’ office continues to investigate the allegations, including a deeper examination of practices at more than 20 nursing homes where reported conduct “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,” James said in a news release unveiling the report. “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.”

In early March 2020, the office began receiving complaints of COVID-related neglect and on April 23, the attorney general set up a hotline to take complaints of abuse and neglect. According to James’ office, the hotline received 770 complaints through Aug. 3 and another 179 complaints through Nov. 16.

The deeper investigations into specific nursing homes are as a result of preliminary findings which include:

  • Insufficient personal protective equipment for nursing home staff.
  • Insufficient COVID-19 testing for residents and staff during the early stages of the pandemic, which put residents at increased risk of harm.
  • The current state reimbursement model gives a financial incentive to owners of for-profit nursing homes to transfer funds to related parties instead of investing in higher levels of staffing and equipment, instead increasing their bottom lines. 
  • Lack of nursing home compliance with executive order requiring communication with family members.

The report also found that New York’s guidance from March requiring admission of COVID-19 patients into nursing homes may have increased the risk of others at the congregate facilities contracting the virus, a notion that a state-commissioned, internal report released in last year dismissed as a possibility.

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Lawmakers and epidemiologists alike have been skeptical of the Department of Health report, issued in July, which absolved Cuomo’s administration of blame for thousands of nursing home deaths attributed to COVID-19. The report concluded that a controversial memo issued by the health agency in late March, as the pandemic surged, was not to blame. Instead, the report concluded the deaths occurred because staff working at the homes had brought the infectious disease into the facilities, months earlier, before the spread of coronavirus in the state was known.

Since that report was released, legislators have called for an independent investigation into the matter, challenging the reliability of an internal review of state practices. In fact, lawmakers even questioned whether the attorney general’s office could be impartial in an investigation. Manhattan Assemblyman Richard Gottfried, chair of the body’s health committee, had challenged the efficacy of James’ office, since it regularly works with the health department and represents state agencies in lawsuits and other investigations.

When James won a contested Democratic primary for attorney general in 2018, she did so with Cuomo’s political support, and opponents at the time raised questions about whether she would operate independently of the governor. During James’ first two years in office, she worked with the governor closely on a number of matters and her office’s attention was trained on the actions of Republican President Donald J. Trump.

But Trump left office eight days ago, and James’ report on Thursday represents a break from Cuomo on the high-profile issue of nursing homes, which has plagued a governor that otherwise has gotten national acclaim for his handling of the pandemic.

Cuomo’s office did not immediately respond to requests for comment.

The controversial memo issued by New York’s health department on March 25 disallowed nursing homes from denying admission or readmission to residents based solely on a positive or suspected COVID-19 diagnosis. If a COVID-19-positive patient at a hospital was medically stable and needed nursing home care, many nursing homes believed the directive required them to accept that person.

The number of deaths the state has reported does not include residents that were infected, transferred to hospitals, then passed away.

The Empire Center for Public Policy, a fiscally conservative Albany think tank, has filed a court case seeking to force the Department of Health to provide the information about hospital deaths, which the think tank contends have been readily available in daily “HERDS” surveys that are filled out by nursing homes and submitted to the state.

The health department has asserted in ongoing responses to the Empire Center’s request that the delays are unavoidable as it’s been engaged in a months-long “diligent search” for the material.

Calls for the data have been bipartisan. Democratic state Sen. James Skoufis, chair of the chamber’s Investigations Committee, warned on Monday that he would support using subpoena power to get answers on nursing home COVID-19 deaths ahead of a Feb. 3 hearing. The next day, the health budget hearing was rescheduled from Feb. 3 to Feb. 25, at the request of the governor’s office.

While James’ office did not have data from all New York nursing homes, it did ask 62 homes for information about on-site and in-hospital deaths, or about 10 percent of the statewide total. After receiving the information, the attorney general’s office found discrepancies in the data publicly reported by the health department. For instance, one facility confirmed that as of May 2020, there had been 11 COVID-19 deaths at the facility, one suspected death, and four hospital deaths.

But according to James’ office, the health department published only one confirmed death until July 31. At that point, the health department then upped the total to 11 – which is still five less, when suspected deaths and hospital deaths are included in the total, than what the facility had reported to the health department.

Spread over 62 facilities, when suspected and hospital deaths are included in the total, a “significantly higher number of resident COVID-19 deaths can be identified than is reflected in the deaths publicized by (the state health department),” according to James’ report, which pegged the apparent undercount at about 50 percent.

The attorney general’s office is “investigating those circumstances where discrepancies cannot reasonably be accounted for by error or difference in the question posed.”

The health department’s report last July – absolving itself of blame for the deaths – said the conclusions were supported by survey responses submitted to the agency by nursing homes. Yet the agency has since refused to provide the Times Union with the underlying nursing homes records forming the basis of the July 6 report. The health department cited two exemptions in denying the newspaper’s request, but refused to say how those exemptions applied to the specific records sought.

James’ office found the health department’s controversial March 25 guidance to nursing homes, which was then rescinded on May 10, “may have led to increased risk to residents in some facilities.” But the report notes that the same health department guidance makes it difficult to know for sure, since it also prohibited nursing homes from requiring COVID-19 testing as a criterion for admission.

“However, using the (health department) publicized data, 4,000 nursing home deaths occurred after the issuance of the March 25 guidance, including some in 323 facilities that apparently had no reported COVID-19 infections before receiving admissions or re-admissions of hospital residents who had been diagnosed with COVID-19,” James’ report states. “While additional data and analysis would be required to ascertain the effect of such admissions in individual facilities, these admissions may have contributed to increased risk of nursing home resident infection, and subsequent fatalities.”

Additionally, the attorney general’s office was critical of a Cuomo executive order last year, as well as a law passed by the Legislature and signed by the governor, shielding health care providers from certain COVID-19-related lawsuits.

“To the extent that the executive order and/or [state law] were interpreted by any nursing homes as providing blanket immunity for harm to residents other than intentional harm, even if the harm was related to intentional resource and staffing allocations, Attorney General James disagrees with such an interpretation as illogical, contrary to public policy, and contrary to the law’s intent,” the attorney general’s report states. “The intent was to support health care professionals making impossible health care decisions in good faith during this unprecedented crisis.”

A labor union that’s been closely allied with Cuomo, the healthcare workers 1199SEIU, quickly put out a statement praising James’ report, although the 1199 statement did not mention the report’s criticisms of the state Department of Health.

Milly Silva, executive vice-president at 1199SEIU, said James’ report affirms what caregivers in nursing homes knew all along: “The underlying poor conditions in too many New York state home worsened the toll from the COVID-19 pandemic.”

“Now is the time for Albany to enact bold reform, as neighboring states have done, to ensure that taxpayer dollars are directed to resident care, not excessive profit, and that there is sufficient staff to meet resident needs,” Silva said in an emailed statement.

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