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Cuomo administration undercounted COVID-19 nursing-home deaths by 50 percent, state attorney general says

By Eric Reinhardt (ereinhardt@cnybj.com)

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New York State Attorney General Letitia James on Thursday released a report finding the New York State Department of Health undercounted the number of COVID-19 deaths in nursing homes by 50 percent. James is pictured here during a visit to City Hall Commons in Syracuse in early 2020. (Eric Reinhardt / CNYBJ file photo)

ALBANY, N.Y. — The New York State Department of Health (DOH) undercounted the number of COVID-19 nursing-home deaths by 50 percent, according to a new report from the office of New York State Attorney General Letitia James, released on Thursday.

The report focused on the ongoing investigations into nursing homes’ responses to the COVID-19 pandemic.

Since March, James has been investigating nursing homes throughout New York based on allegations of patient neglect and other concerning conduct that may have jeopardized the health and safety of residents and employees, per a Thursday news release.

Undercounting of COVID-19 deaths in nursing homes

The attorney general’s office said that preliminary data it obtained suggested 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.”

The office also said it found underreporting to DOH by some nursing homes of resident deaths occurring in their facilities. “In fact, the [office of attorney general] found that nursing home resident deaths appear to be undercounted by DOH by approximately 50 percent.”

The office asked 62 nursing homes (10 percent 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, it compared: (1) in-facility deaths reported to the attorney general’s office compared to in-facility deaths publicized by DOH, and (2) total deaths reported to the office of attorney general compared to total deaths publicized by DOH.

In one example, a nursing home reported five confirmed and six presumed COVID-19 deaths at the facility as of Aug. 3 to DOH. However, the facility reported to the attorney general’s a total of 27 COVID-19 deaths at the nursing home and 13 hospital deaths — a difference of 29 deaths.

The attorney general’s report also examined the Cuomo administration’s controversial decision to require the state’s nursing homes to take in patients who tested positive for COVID-19 after they were discharged from hospitals and bar nursing homes from testing patients before admitting them. The report says, “At least 4,000 nursing home residents died after DOH’s March 25 guidance on admission practices.” It says that the “guidance may have led to an increased risk to residents in some facilities and may have obscured the data available to assess the risk.”

Nursing homes’ actions

The state attorney general’s 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 these findings and subsequent investigation, James is conducting ongoing investigations into more than 20 nursing homes whose reported conduct during the first wave of the pandemic “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. “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.”

DOH statement

Dr. Howard Zucker, commissioner of the New York State Department of Health, released a lengthy statement in response to the nursing-home report. Here’s a portion of Zucker’s comments.

“The New York State Office of the Attorney General (OAG) 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. 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. Indeed, the OAG acknowledges in a footnote on page 71 that DOH was always clear that the data on its website pertains to in-facility fatalities and does not include deaths outside of a facility. The word ‘undercount’ implies there are more total fatalities than have been reported; this is factually wrong. In fact, the OAG report itself repudiates the suggestion that there was any ‘undercount’ of the total death number.

 The OAG’s report is only referring to the count of people who were in nursing homes but transferred to hospitals and later died. The OAG suggests that all should be counted as nursing home deaths and not hospital deaths even though they died in hospitals. That does not in any way change the total count of deaths but is instead a question of allocating the number of deaths between hospitals and nursing homes. 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.”

Lawmaker reaction

Onondaga County Executive Ryan McMahon said the nursing-home report didn’t surprise him “one bit.”

“The report wasn’t a shocking report to me because I live this every day. [Onondaga County Health Commissioner] Dr. [Indu] Gupta lives this every day … We go through the heartbreak and talk to the families every day,” McMahon said in responding to a reporter’s question during his Thursday coronavirus briefing at the Oncenter.

McMahon said the report brought him back to the beginning of the pandemic when he says he specifically wanted the nursing homes to do more related to testing and “I was basically told to stay in my lane.”

“I will live with that the rest of my life that I did not scream louder … if we were testing the way I was asking them to test, we probably would’ve identified some of this,” he added in his response.

New York State Assembly Minority Leader Will Barclay (R–Pulaski) calls the attorney general’s report on nursing homes “alarming on a number of levels” and one that “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. The report indicates that as many as 13,000 nursing-home residents may have died from COVID-19 — that’s more fatalities than the entire death toll of 40 states. Families, advocates, members of the media and lawmakers demanded the truth for months. But this administration dismissed those questions as a politically-motivated agenda, and went so far as to concoct a Department of Health report that absolved the Department of Health. Our governor actually wrote a book about leadership in the middle of the COVID-19 pandemic. But as we learned today, and as many suspected, he never told the whole story.”

New York State Senator Pamela Helming (R–Canandaigua) said the report prompted her to call for the resignation of Zucker.

“The underreporting of COVID deaths in New York’s nursing homes by as much as 50 percent is a betrayal of the public trust and Dr. Zucker must take accountability for this. I have lost faith in his ability to lead this critical agency and provide information that can be trusted,” Helming said in a Thursday afternoon statement.

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