The office of Attorney General Letitia James issued a report today that found more nursing-home residents died of COVID-19 than data from the state’s health department reflected.

The investigation found that nursing homes with worse staffing ratios had more COVID-19 deaths and that, in some facilities, lack of adequate personal protective gear for staff put residents at risk.

Early in the pandemic, insufficient testing for COVID-19 of staff and residents also created risk.

The state’s model for reimbursing nursing homes gives owners of for-profit nursing homes incentive to increase their own profit by transferring funds to related parties rather than investing in more staff or more protective gear, the report says.

“Avoidable pain and distress” was caused, the report says, when nursing homes did not comply with the executive order requiring communications with family members.

Finally, the investigation found that 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.

A flurry of critical statements —from both Democrats and Republicans — followed the release of the 76-page report.

State Senate Republican Leader Robert Ort called for the resignation of Howard Zucker, the state’s health commissioner.

Assemblywoman Patricia Fahy, a Democrat representing part of the Capital District, said, “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.”

Fahy called for further investigation into the state’s decision to require admittance of COVID-positive patients into nursing homes. She also called for “re-prioritizing vaccine distribution to nursing homes and congregate-care settings.”

Republican Assemblyman Chris Tague called for rescinding Governor Andrew Cuomo’s emergency powers and demanded legislative hearings on his administration’s handling of COVID-19 in nursing homes.

Bill Hammond, senior fellow with the Empire Center, a fiscally conservative think tank, said the center sparked the investigation with its request for information on nursing home deaths from the state’s health department.

“Surprisingly, this report still does not disclose the full data being collected by the department, which includes hospital transfers and has been repeatedly requested by the Legislature and others, including the Empire Center,” Hammond wrote.

On Wednesday, Feb. 3, the Empire Center announced a decision by state Supreme Court Justice Kimberly O’Connor requiring the state’s health department to provide the requested records — full COVID-19 death tolls in New York nursing homes — within five business days and compensate the Empire Center and its legal counsel for their litigation expenses. 

“The Court is not persuaded that the respondent’s estimated date for responding to Empire Center’s [Aug. 3, 2020] FOIL request is reasonable under the circumstances of the request,” O’Connor wrote.

Hours after the release of the attorney general’s report last Thursday, Zucker did release some numbers in response.

“DOH has stated on numerous occasions that data will be released once this audit has been completed,” Zucker wrote. “Although the audit remains ongoing, DOH data audited to date shows that from March 1, 2020 to January 19, 2021 9,786 confirmed fatalities have been associated with Skilled Nursing Facility residents, including 5,957 fatalities within nursing facilities, and 3,829 within a hospital.

“This represents 28% of New York's 34,742 confirmed fatalities — below the national average.” He cites a national figure, from the Kaiser Family Foundation, of 35 percent of COVID-19 deaths being nursing-home fatalities.

Zucker also lists states with higher percentages: Pennsylvania at 49 percent of total COVID-19 deaths from nursing homes, Florida at 35 percent, Massachusetts at 56 percent, and New Jersey at 36 percent.

“It is worth noting,” Zucker goes on, “that there remain 13 states that report no information on nursing home fatalities and only nine states, including New York, report nursing home fatalities that are ‘presumed’ COVID and not confirmed COVID.”

Zucker notes further that the state’s dashboard, in reporting the 34,742 nursing-home deaths, states, “This data does not reflect COVID-19 confirmed or COVID-19 presumed positive deaths that occurred outside of the facility.”

Zucker asserts, “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.”

In response to the report’s suggestion that nursing home residents who die in hospitals should be counted as nursing-home deaths, Zucker says, “DOH has consistently made clear that our numbers are reported based on the place of death. DOH does not disagree that the number of people transferred from a nursing home to a hospital is an important data point, and is in the midst of auditing this data from nursing homes. As the OAG report states, reporting from nursing homes is inconsistent and often inaccurate.”

Zucker continues, “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.”

March 25 advisory

The attorney general’s report states that at least 4,000 nursing-home residents died after DOH’s March 25 guidance on admission practices.

The guidance said that “[n]o resident shall be denied re-admission or admission to the nursing home solely based on a confirmed or suspected diagnosis of COVID-19. Nursing homes are prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or re-admission.” The guidance was rescinded with a May 10 executive order.

The report says the state’s guidance was consistent with guidance from the the Centers for Medicare and Medicaid Services at the time and also with CDC Published Transmission-Based Precaution guidance.

“It is worth noting,” says the report, “that to the extent New York hospitals had capacity concerns due to the pandemic, the March 25 guidance would have been helpful to communities where those facilities were experiencing longer COVID-19 patient stays due to delays in receiving testing results, and were at or exceeding acute care capacity while they simultaneously were anticipating more new patients in need of acute care.”

The report goes on, “DOH has said that nothing in the guidance stated that a facility should accept patients who could not be safely cared for. As to whether the March 25 guidance affected risks to residents, DOH presented data reflecting the spike in health care worker infection and the later spike in deaths as circumstantial support for the position that the guidance did not contribute much to resident risks or deaths.”

DOH has said the median hospital stay was nine days after which a patient is likely not contagious.

The report goes on, “Data linking the number of nursing home deaths to the admissions policy contained in the March 25 guidance is obscured by that same guidance, which also prohibited nursing homes from requiring COVID-19 testing as a criterion for admission.”

In his statement, Zucker says, “The OAG report also found no evidence that DOH’s March 25 advisory memo resulted in additional fatalities in nursing homes. In fact, a DOH report, which the OAG cites in its own review, found that 98 percent of nursing homes already had COVID in their facilities prior to a patient being admitted there from a hospital.”