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In a statement, the health commissioner said the total number of deaths in the state had not changed and argued that "many nursing home operators made grave mistakes and were not adequately prepared"

By Katie Campione
Updated January 28, 2021 08:18 PM
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A health care worker talking to a patient.
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The New York State Health Department's count of the COVID-19 death toll among nursing homes patients rose sharply on Thursday as state officials acknowledged troubling discrepancies in how those fatalities had initially been reported — though those same officials offered contrasting explanations for the problem. 

Since March, New York Attorney General Letitia James has been investigating the state's nursing homes and their response to the COVID-19 pandemic.

On Thursday, James' investigators concluded in a 76-page report that "a larger number of nursing home residents died from COVID-19 than the New York State Department of Health's (DOH) published nursing home data reflected and may have been undercounted by as much as 50 percent," James' office said.

That same day, after James' report was released, New York Health Commissioner Dr. Howard Zucker announced that a state audit of its data increased the nursing home-related deaths by more than 3,800 — a jump of deaths in that category of more than 40 percent, according to The New York Times, largely lining up with James' analysis.

Zucker said there were now 9,786 confirmed deaths related to nursing home residents, including deaths in a facility or a hospital. In addition, there were 2,957 presumed COVID deaths related to nursing homes, Zucker said.

However, he made clear this was a categorization change and not an underreporting of previously unknown COVID deaths. The total number of COVID deaths in New York —  34,742 — has not changed, he said. 

(Some media outlets' independent counts of the total deaths are higher.)

At issue is how New York's health department has been categorizing deaths at nursing home fatalities and how those same facilities reported deaths back to the state.

James' report cites several examples of care facilities reporting one set of numbers to the health department and another to her investigators. 

In one example, the report states that an unnamed facility reported to the Department of Health five confirmed and six presumed COVID-19 deaths at the facility as of Aug. 3. 

However, when probed by the attorney general's office, the same facility reported a total of 27 COVID-19 deaths at the facility and 13 hospital deaths during that time — a discrepancy of 29 deaths.

Zucker, in his statement, laid the blame with the facilities, saying "reporting from nursing homes is inconsistent and often inaccurate."

"To the extent the OAG [the attorney general] has identified situations in which nursing home operators submitted false information to the State, the OAG should communicate those discrepancies to [the health department] so that we can pursue enforcement actions," Zucker said.

But there is another dynamic: The state has, somewhat controversially, previously only counted the number of patients who died while at a facility. It did not count sick residents who died at a hospital after being transferred from a facility. Rather, those numbers were added to another category.

Zucker said in his statement that his department "does not disagree that the number of people transferred from a nursing home to a hospital is an important data point" and is currently auditing that data from nursing homes.

Critics of New York Gov. Andrew Cuomo's pandemic response suspected this was a deliberate choice to obscure the full toll on the state's nursing home residents. Cuomo — whose role in the pandemic response at the COVID epicenter made him the most famous governor in the country — has said such arguments are politically motivated and ignore how New York compares to other states.

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James, in her report, noted that there were ongoing investigations of New York nursing homes for alleged wrongdoing in the pandemic. 

But she also criticized immunity provisions for nursing homes and other healthcare facilities, put forth by Cuomo, that may have made operators prioritize profit over adequate training, staffing and other needs, she said. ("This legislation is not intended to shield any bad-acting facilities during this tragic time, but rather to ensure facilities could continue to function in the face of potential shortages and other evolving challenges the pandemic presented," a spokeswoman for Cuomo previously told The New York Times. The protections did not cover misconduct or gross negligence, according to the Times.)

James also criticized the state’s requirement that COVID-19 patients must be re-admitted into nursing homes that said they could provide adequate care. 

The report found that such a move “may have put residents at increased risk of harm in some facilities and may have obscured the data available to assess that risk” because facilities were barred from requiring COVID-19 tests as a criteria for admission.

That decision, which was in keeping with guidance from the federal government at the time, has been a persistent vulnerability in Cuomo’s pandemic response — even as state officials say it is overblown, as data shows nursing home patients were almost always re-admitted to facilities where COVID was already spreading.

"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 in a statement

She continued, "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."

In his statement, Zucker said: “There is no satisfaction in pointing out inaccuracies; every death to this terrible disease is tragic, and New York was hit hardest and earliest of any state as a direct result of the federal government's negligence [under Trump]. There is still an ongoing crisis that is being actively managed and investigated and we will review the remainder of the recommendations as we continue to fight with every resource and asset to protect all New Yorkers from the scourge of COVID.”

The directive about re-admitting nursing home patients was reversed in May.

State health officials have repeatedly defended the requirement, saying that nursing homes were responsible for reporting if they were not equipped with the infection control measures to take care of these patients. The state also said much of the infections were likely due to staff, not patients.

The attorney general's new report acknowledges the directive about re-admittance was consistent with federal government guidance at the time, to help with hospital capacity concerns that the state was experiencing early in the pandemic.

In July, the Department of Health released a report stating that many these patients "were no longer contagious when admitted and therefore were not a source of infection." 

The report from the attorney general also states that lack of compliance with infection control protocols, lack of personal protective equipment for facility staff and lack of testing for staff and residents contributed to a heightened risk factor at many nursing homes across the state. 

Investigators note several instances of COVID-19 positive patients not being properly isolated from the rest of the residents and facilities not properly screening staff before allowing them to care for residents.

In his statement, the health commissioner called these actions "reprehensible" and said the department is conducting investigations into these facilities.

"All of this confirms that many nursing home operators made grave mistakes and were not adequately prepared for this pandemic and that reforms are needed …. We will do everything in our power to enact those reforms this year," Zucker said.

This story has been updated.

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