"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 found.
The Attorney General's Office also found that a larger number of nursing home residents died from COVID-19 than the New York State Department of Health's published nursing home data reflected and may have been undercounted by as much as 50%.
"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. "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. 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 report deals a blow to Cuomo's oft-repeated claims that his state is doing better than others in protecting its most vulnerable. Such an undercount would mean the state's initial official tally of 8,711 nursing home deaths to the virus is actually more than 13,000, boosting New York from No. 6 to highest in the nation.
The state has since released more complete numbers and is now reporting that from March 1, 2020 to Jan. 19, 2021, there were 9,786 deaths, including 5,957 deaths in nursing facilities and 3,829 within a hospital, which is a 12.3% increase.
The state health commissioner said no one was being dishonest, rather, nursing home COVID deaths had been counted only if a person actually died in the facility.
The numbers have also been updated to include 2,957 presumed nursing home fatalities, for a total of 12,743, which is a 46.2% increase.
Cuomo has been under attack for months for mandating that COVID positive patients be readmitted to nursing homes after leaving hospitals. He said he was following CDC guidance, but the report says that, couple with poor infection control in nursing homes, contributed to the deaths.
The investigations also revealed that facilities that had lower pre-pandemic staffing ratings had higher COVID-19 fatality rates.
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New York State Health Commissioner Dr. Howard Zucker is pushing back against the idea that the death toll undercounted.
"The word 'undercount' implies there are more total fatalities than have been reported; this is factually wrong," he said in a lengthy statement in response to the report. "In fact, the OAG report itself repudiates the suggestion that there was any 'undercount' of the total death number."
Instead, he focused on the compliance issues.
"The Attorney General's initial findings of wrongdoing by certain nursing home operators are reprehensible, and this is exactly why we asked the Attorney General to undertake this investigation in the first place," he said. "To that end, DOH continues to follow up on all allegations of misconduct by operators and is actively working in partnership with the OAG to enforce the law accordingly."
Based on the findings and subsequent investigation, the Attorney General's Office is conducting ongoing investigations into more than 20 nursing homes whose reported conduct during the first wave of the pandemic presented particular concern.
"These are our loved ones we lost, it is someone's grandma, it's someone's mother or father, aunt or uncle, this is families missing someone dear to them, and you know for so many people, and you know I talk to them, and I talk to people who were all over the city who lost someone and could not be with them, and it made it so much more horrible," Mayor Bill de Blasio said in response to the report. "We have to get the full truth, and we have to make sure it never, ever happens again, nothing like this happens again. We have to be honest about the numbers."
Since March, James has been investigating nursing homes throughout New York state based on allegations of patient neglect and other concerning conduct that may have jeopardized the health and safety of residents and employees.
At Cuomo's direction, James' office set up a hotline in April to receive complaints relating to communications by nursing homes with family members prohibited from in-person visits to nursing homes and formally initiated a large-scale investigation of nursing homes' responses to the pandemic.
They received more than 770 complaints on the hotline through August 3, and an additional 179 complaints through November 16.
The report includes preliminary findings based on data obtained in investigations conducted to date, recommendations that are based on those findings, related findings in pre-pandemic investigations of nursing homes, and other available data and analysis.
The investigation found that:
--A larger number of nursing home residents died from COVID-19 than DOH data reflected
--Lack of compliance with infection control protocols put residents at increased risk of harm
--Nursing homes that entered the pandemic with low U.S. Centers for Medicaid and Medicare Services (CMS) Staffing ratings had higher COVID-19 fatality rates
--Insufficient personal protective equipment (PPE) for nursing home staff put residents at increased risk of harm
--Insufficient COVID-19 testing for residents and staff in the early stages of the pandemic put residents at increased risk of harm
--The current state reimbursement model for nursing homes gives a financial incentive to owners of for-profit nursing homes to transfer funds to related parties (ultimately increasing their own profit) instead of investing in higher levels of staffing and PPE
--Lack of nursing home compliance with the executive order requiring communication with family members caused avoidable pain and distress
--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
Undercounting of COVID-19 Deaths in Nursing Homes
Preliminary data suggests that many nursing home residents died from COVID-19 in hospitals after being transferred from their nursing homes, which is not reflected in DOH's published total nursing home death data. Preliminary data also reflects apparent underreporting to DOH by some nursing homes of resident deaths occurring in nursing homes. In fact, the investigation found that nursing home resident deaths appear to be undercounted by DOH by approximately 50%.
The Office of the Attorney General (OAG) asked 62 nursing homes (10% of the total facilities in New York) for information about on-site and in-hospital deaths from COVID-19. Using the data from these 62 nursing homes, they compared: (1) in-facility deaths reported to OAG compared to in-facility deaths publicized by DOH, and (2) total deaths reported to OAG compared to total deaths publicized by DOH.
In one example, a facility reported five confirmed and six presumed COVID-19 deaths at the facility as of August 3 to DOH. However, the facility reported to OAG a total of 27 COVID-19 deaths at the facility and 13 hospital deaths - a discrepancy of 29 deaths.
Lack of Compliance with Infection Control Policies
OAG received numerous complaints that some nursing homes failed to implement proper infection controls to prevent or mitigate the transmission of COVID-19 to vulnerable residents. Among those reports were allegations that several nursing homes around the state failed to plan and take proper infection control measures, including:
--Failing to properly isolate residents who tested positive for COVID-19
--Failing to adequately screen or test employees for COVID-19
--Demanding that sick employees continue to work and care for residents or face retaliation or termination
--Failing to train employees in infection control protocols
--Failing to obtain, fit, and train caregivers with PPE
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