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AG report: NY underreported nursing home COVID deaths

Letitia James speaks to the Watertown Daily Times editorial board in January this year. (Sydney Schaefer, Watertown Daily Times)

ALBANY — New York’s total COVID-19 deaths in nursing homes are about 42% more than what the state Department of Health previously published, according to a report from the state attorney general’s office released Thursday morning. The DOH confirmed the higher numbers that afternoon, releasing for the first time the number of presumed long-term care coronavirus fatalities.

According to state Health Department Commissioner Dr. Howard Zucker, department data audited to date shows 12,743 total skilled nursing facility resident fatalities, including 9,786 confirmed deaths from COVID-19 complications — 5,957 fatalities within nursing facilities and 3,829 in hospitals — and 2,957 presumed virus nursing home fatalities from March 1, 2020 to Jan. 19, 2021.

The state Health Department reported 8,951 nursing home fatalities on its website as of Thursday morning. The 12,743 confirmed and presumed deaths reflect a 42.36% increase in the state’s total COVID-19 deaths in nursing homes.

Presumed COVID fatalities occurred mainly toward the beginning of the pandemic when testing was scarce and medical personnel did not have confirmed evidence the deceased was infected with the virus.

Attorney General Letitia James has investigated allegations of coronavirus-related neglect of nursing home residents since last March when the pandemic began, according to a statement from her office Thursday morning.

Her investigation concluded, among other findings, that many residents died from COVID-19 in hospitals after being transferred from their nursing homes, deaths which were not reflected in the DOH’s published total nursing home death count.

The investigation

James asked 62 of the state’s 613 nursing home and adult-care facilities for their recorded COVID-19 deaths of on-site residents and residents taken to hospitals from the week of March 1 through when each facility responded to her request.

“We are not releasing the names of any facilities and we do not have total death numbers for various regions,” according to a statement from the attorney general’s office Thursday.

More than 20 nursing homes remain under investigation by the AG’s office.

The office also would not confirm whether any of the nursing homes under investigation were located in the north country region.

Stephen A. Jennings, public health planner with the Jefferson County Public Health Service, said Thursday that the agency isn’t required to keep track of COVID-19 deaths in nursing homes, but have logged 17 since they started keeping track Dec. 28.

Public health officials in Lewis and St. Lawrence counties did not respond to request for comment Thursday.

The 62 facilities reported 1,914 total COVID-19 deaths to the attorney general’s office, including residents who died from virus complications off-site in a hospital, compared to 1,229 deaths published by the DOH. Data in the report does not include numbers to date, and reflects data available through early August, with others reporting numbers through mid-November.

One facility reported five confirmed and six presumed COVID-19 deaths as of Aug. 3 to DOH. But the facility reported a total of 27 COVID-19 deaths at the facility and 13 hospital deaths to the attorney general — a discrepancy of 29 deaths, according to the report.

The discrepancy of 685 additional deaths reported to the attorney general shows the DOH underreported the fatalities by about 55%, according to a statement from her office Thursday.

James initiated a large investigation of the pandemic response within the state’s 613 adult care facilities following a large number of complaints from family members having issues receiving communications from nursing home staff while in-person visits were prohibited between April 23 and Aug. 3.

The report indicates more than 770 complaints were received in that timeframe, and an additional 179 complaints were filed through Nov. 16, during the fall virus surge before the holiday season.

Gov. Andrew Cuomo requested James investigate compliance of state coronavirus orders in long-term care facilities.

The attorney general’s report indicates government guidance requiring the admission of COVID-19 patients into nursing homes may have put residents at increased risk of harm in some facilities, and may have obscured the data available to assess that risk.

The report comes amid widespread allegations of patient neglect as adult care facilities failed to comply with infection control policies.

“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,” James said in a prepared statement. “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.”

The AG’s report says alleged instances of neglect include insufficient personal protective equipment such as gloves, face shields, masks and gowns, as well as insufficient COVID-19 testing for residents and staff. Nursing homes’ lack of compliance with infection-control protocols put residents at increased risk of harm, and facilities that had lower pre-pandemic staffing ratings had higher COVID-19 fatality rates, according to the report.

“The report’s findings that nursing home operators failed to comply with the state’s infection control protocols are consistent with DOH’s own investigation,” Zucker said in a prepared statement Thursday. “These failures are in direct violation of Public Health Law and DOH guidance that every nursing home operator was aware of. Violations of these protocols is inexcusable and operators will be held accountable.”

DOH: “no undercount”

The attorney general’s report on the state’s numbers discrepancy refers to the count of nursing home residents who were transferred to hospitals and later died from COVID-19, according to Zucker’s Thursday statement.

“The Office of the Attorney General suggests all should be counted as nursing home deaths and not hospital deaths even though they died in hospitals,” Zucker said. “The New York state Office of the Attorney General report is clear that there was no undercount of the total death toll from this once-in-a-century pandemic.

“The OAG affirms that the total number of deaths in hospitals and nursing homes is full and accurate,” he added. “New York State Department of Health has always publicly reported the number of fatalities within hospitals irrespective of the residence of the patient, and separately reported the number of fatalities within nursing home facilities and has been clear about the nature of that reporting.”

The report contains a footnote on page 71, Zucker added, that the DOH was always clear and the data on its website pertains to in-facility fatalities.

“The word ‘undercount’ implies there are more total fatalities than have been reported,” Zucker said. “This is factually wrong. In fact, the OAG report itself repudiates the suggestion that there was any ‘undercount’ of the total death number.”

Representatives from Gov. Andrew Cuomo’s office referred all questions to Zucker’s response.

The findings related to government guidance on the return of patients from hospitals to nursing homes are in reference to a controversial March 25, 2020, memo from the DOH, which mandated those facilities and nursing homes cannot discriminate against residents by not readmitting people who test positive for the coronavirus.

Many have said infected nursing home patients brought the virus with them when they returned to the facility, or home, to recover.

Gov. Andrew Cuomo has argued the March 25 directive was in compliance with federal U.S. Centers for Disease Control and Prevention guidance at the time.

The attorney general’s report did not cite evidence the March 25 directive resulted in additional fatalities in nursing homes, Zucker said.

A self-published DOH report from late last summer found 98% of nursing homes already had COVID in their facilities prior to a patient admitted from a hospital, Zucker said.

The governor has brushed off questions about the state’s number and handling of nursing home deaths several times when pressed on the issue in the past, saying the argument is purely political.

Immunity?

Recent changes to state law providing limited immunity provisions for health care providers relating to COVID-19 make the attorney general’s next actions unclear, according to James’ office. Cuomo created the provisions March 23 with the Emergency Disaster Treatment Protection Act, which provides immunity to health care professionals from potential liability arising from certain decisions, actions or omissions related to care during the COVID-19 pandemic, according to the Attorney General’s Office.

“Despite these disturbing and potentially unlawful findings, due to recent changes in state law, it remains unclear to what extent facilities or individuals can be held accountable if found to have failed to appropriately protect the residents in their care,” according to a statement from the AG’s office. “While it is reasonable to provide some protections for health care workers making impossible health care decisions in good faith during an unprecedented public health crisis, it would not be appropriate or just for nursing homes owners to interpret this action as providing blanket immunity for causing harm to residents.”

James recommends the new immunity provisions are eliminated to ensure every person can be held accountable.

North Country reactions

North Country Control Room member and Jefferson County Board of Legislators Chairman Scott Gray said Thursday the AG’s report is “concerning.”

“I still maintain, more so now than ever, it’s important for clear lines of clear communication between the facilities and families,” he said. “Period.”

“This is now more than a nursing home scandal,” Rep. Elise Stefanik, R-Schuylerville, said in a prepared statement Thursday morning upon the report’s release. “This is a massive corruption and coverup scandal at the highest level of New York State Government.”

She said the “scandal” implicates Cuomo, Zucker, Secretary to the Governor Melissa DeRosa and the governor’s staff.

“Every New Yorker deserves transparency, accountability and answers regarding the orchestration of this illegal coverup,” she said.

State Sen. Dan Stec, R-Queensbury, said in a statement, “What we are learning is alarming to say the least, a case of either gross incompetence or an apparent cover-up by Cuomo and his administration.

“Early on we were promised by the governor that data would drive decisions, with him saying he would share all of the numbers,” Stec added. “The governor hasn’t kept his promise.”

Stec said he can’t blame nursing home staff.

“Anyone who has spent time in a nursing home knows the tremendous challenge that goes on there every day,” he said. “I have nothing but respect and appreciation for the men and women who work in our nursing homes and try mightily to offer the compassionate and attentive care we all hope for our elderly family members and friends. Not for a minute can we blame them.”

North Country state Assemblymen Matt Simpson, R-Horicon; Billy Jones, D-Chateaugay Lake; Kenneth D. Blankenbush, R-Black River; and Mark Walczyk, R-Watertown, also voiced concern Thursday over the report.

“The governor has repeatedly stonewalled the press and Legislature on nursing home numbers after his misguided policy of sending COVID-19 positive patients back into these facilities became public,” Simpson said in a statement. “The day of accountability has arrived for family members who lost loved ones in nursing homes. … They will no longer be pushed aside by this governor. We will demand justice on their behalf, and we will demand it now. It starts by removing the governor’s emergency powers so that we can promote accountability and serve in our constitutionally required oversight capacity.”

Jones said he is “outraged at the lack of transparency and accuracy from the Department of Health and the Administration.” He added, “The release of this report is only the beginning of an investigation that should uncover the truth these families rightfully deserve.”

State Assembly Minority Leader William Barclay issued a similar statement Thursday afternoon, calling the report “alarming on a number of levels” and said it “triggers even more questions.”

“What took place in New York’s nursing homes and the Cuomo Administration’s decision to deliberately mislead the public by underreporting COVID-19 fatalities is unconscionable and demands accountability,” he wrote.

James encourages anyone with information or concerns about state nursing home conditions to call 833-249-8499 or file a confidential complaint online.

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