ALBANY, N.Y. – A probe by the New York Attorney General's Office found COVID-19 deaths of nursing home residents in the state may have been undercounted by as much as 50% as poor infection-control practices and understaffing fueled the coronavirus crisis inside the long-term care facilities.
The bombshell investigation reported the state Department of Health's controversial policy to only publicly report COVID-19 deaths of residents inside nursing homes and withhold deaths of residents transferred to hospitals hindered attempts to improve conditions inside the facilities.
The true COVID-19 death toll of New York nursing home residents is closer to 13,000, as opposed to the 8,677 reported to date by the state Department of Health, according to the investigation's findings. Nursing homes might have also undercounted their deaths to the state, the report said.
“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,” Attorney General Letitia James said in a statement.
“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 added.
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What the investigation found
The investigation also revealed that 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.
Based on the findings and subsequent investigation, James is conducting ongoing probes into more than 20 nursing homes whose reported conduct during the first wave of the pandemic presented particular concern.
State Health Commissioner Dr. Howard Zucker has refused to release the number of nursing home residents who died due to COVID-19 after being transferred to a hospital, which experts suggested could add thousands of deaths.
Zucker pledged in August to release the information once it could be confirmed as accurate, but that has not happened.
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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, James said.
On March 23, New York Gov. Andrew Cuomo and lawmakers created limited immunity provisions for health care providers relating to COVID-19, James said.
The Emergency Disaster Treatment Protection Act provides immunity to health care professionals from potential liability arising from certain decisions, actions and omissions related to the care of individuals during the COVID-19 pandemic.
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 home owners to interpret the action as providing blanket immunity for causing harm to residents, James said.
James recommended eliminating the newly enacted immunity provisions to ensure no one can evade potential accountability.
The state Legislature in July passed a bill signed by Cuomo to limit the scope of immunity for health care providers, but advocates said more revisions are needed.
Milly Silva, executive vice president for the 1199SEIU union representing many nursing home workers, praised the investigation for confirming workers' complaints about poor conditions in nursing homes.
“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 a statement.
"Our state’s vulnerable nursing home residents and those that care for them deserve no less,” he added.
There was no immediate comment from Cuomo's administration on the report's findings.
How New York undercounted nursing home COVID-19 deaths
Investigators with the Office of the New York Attorney General analyzed COVID-19 deaths for 62 nursing homes, or roughly 10% of facilities statewide, to estimate the severity of the state's undercount at the fatalities, the report shows.
Using the data from the 62 nursing homes, the probe compared in-facility deaths reported to investigators to in-facility deaths publicized by the state, as well as total deaths reported to investigators to total deaths publicized by the state.
That formula concluded the publicly reported death toll was undercounted by as much as 50%, but an investigation is continuing into the reasons for the discrepancies, the report added.
The findings were seized on by a bipartisan group of state and federal lawmakers, many of who had for months railed against how Cuomo handled the virus' spread in nursing homes.
Republican state Senate Minority Leader Robert Ortt called on Zucker to resign.
"By underreporting COVID deaths in nursing homes by as much as 50%, the Department of Health has betrayed the public trust," Ortt said in a statement.
Democrats also knocked the Cuomo administration, calling for independent investigations and greater accountability by his office.
State Assemblyman Ron Kim, D-Queens, said New York "has committed a human rights violation by choosing to protect nursing home profits over the safety of older adults and vulnerable members."
He called for the state to form a nonpartisan commission with subpoena power to investigate what happened at the nursing homes.
"The Governor handed out blanket immunity to corporate executives which cost lives and brought undue pain and suffering," Kim said in a statement. "It is a business model soaked in blood."