New York AG finds COVID-19 nursing home deaths vastly underreported

About Liz Seegert

Liz Seegert (@lseegert), is AHCJ’s topic leader on aging. Her work has appeared in, Journal of Active Aging, Cancer Today, Kaiser Health News and other outlets. She is a senior fellow at the Center for Health Policy and Media Engagement at George Washington University and co-produces the HealthCetera podcast.

Photo: Zeev Barkan via Flickr

Deaths among nursing home residents in New York state have been underreported by as much as 50%, according to a new report from New York State Attorney General Letitia James. James has been investigating nursing homes’ response to the COVID-19 pandemic since March following allegations of patient neglect and other concerning conduct that may have jeopardized the health and safety of residents and facility employees throughout the state.

Among the report’s findings: many more nursing home residents died from COVID-19 than was reflected in data published by the New York State Department of Health (DOH). The investigations also revealed that nursing homes’ lack of compliance with infection control protocols put residents at increased risk of harm, and facilities with lower pre-pandemic staffing ratings had higher COVID-19 fatality rates.

Based on these findings and subsequent investigation, James is now investigating more than 20 nursing homes where reported conduct during the pandemic’s first wave presents a 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 in a written 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. Nursing home 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 attorney general’s office said they received hundreds of complaints on its COVID-neglect hotline that launched last April, according to this story from WCBS-TV. As of Jan. 27, New York has reported more than 8,700 nursing home deaths linked to COVID-19. Last August, the Associated Press reported that Gov. Andrew Cuomo downplayed alleged undercounts of nursing home deaths in his state, saying it made sense to only include residents who died while on the nursing home property and not to include those who died after being transported to hospitals.

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. They then compared in-facility deaths reported to OAG versus in-facility deaths publicized by DOH; and total deaths reported to OAG compared to total deaths that DOH announced.

As this New York Times story described, “in one instance, an unnamed facility reported to the Health Department that it had 11 confirmed and presumed deaths on-site through early August. The attorney general’s survey of that same facility, however, found 40 deaths, including 27 at home and 13 in hospitals.”

Among the 76-page report’s other findings:

  • 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 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

“Despite these disturbing and potentially unlawful findings, 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,” the report said. To ensure no one can evade potential accountability, James recommended eliminating these newly enacted immunity provisions.

As of this writing, Cuomo has not responded to the report’s findings. However, Department of Health Commissioner Howard Zucker, M.D., said in a statement that the state was consistent in its reporting of deaths based on place of occurrence and blamed the Trump administration for failing to provide adequate guidance in how to record deaths.

Here are some questions to answer when reporting on this topic in your community:

  • What, if any, reporting discrepancies of nursing home deaths exist in your state? AARP has this helpful tracker as one starting point. You also can search CMS nursing home data here.
  • Does this differ from official state health department figures? If so, why?
  • What criteria is the health department or other entity using?
  • Are there differences in reporting deaths, infection control or additional data by for-profit or non-profit homes?

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