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Blair Horner: Attorney General Issues Report On Nursing Home COVID Care

The big news in Albany last week was the dramatic report released by the New York State Attorney General’s office.  The report examined the Cuomo Administration’s estimates on the number of nursing home patients who died due to COVID-19. 

Using data from the state and nursing homes, the report found that the Cuomo Administration had publicly acknowledged far fewer nursing home deaths than had occurred.  The report was the first outside look at the COVID death rate in New York nursing homes.  Governor Cuomo has repeatedly reported nursing home death numbers but had steadfastly refused to provide the detailed information to back up his claims.  Reporters and outside advocates have requested the public data through the state’s Freedom of Information Law but have been repeatedly blocked.  Indeed an advocacy group filed a lawsuit urging a court to order release of the state Health Department’s underlying data.

Until last week, that information had not been made public.

The state’s Attorney General, Letitia James, had launched an investigation into the situation and last week released her findings. 

The AG did not find that the number of New York’s total overall reported COVID deaths was undercounted, just the location of where those deaths occurred.  The state’s data collection methodology counted nursing home patients who died in hospitals as being hospital deaths, not nursing home deaths.  Why that matters is that if nursing home residents contracted COVID in nursing homes, reporting that they were among the others who died from COVID in the hospitals undermines confidence in state reporting and its oversight of nursing homes policies.

Hours after the AG’s report was released, the state Health Department finally issued its own – belated – report that essentially agreed with the AG’s conclusion that 50 percent more nursing home patients died than had been previously reported.

The following day the governor defended the state’s policies arguing that the total number of COVID deaths was unchanged.  The governor said that he believed “everybody did the best they could.  I believe the state Department of Health, they gave their best guidance and made the best decisions on the facts they had.”

The Attorney General’s report also highlighted the poor quality of care in many nursing homes, including failure to enforce infection control policies, the inadequate ratios of nursing staff to residents as well as failure to ensure proper personal protective equipment, and that the shift from non-profit ownership to effectively for-profit ownership contributed to these inadequacies. 

The report is likely to drive public debates at the state Capitol.  There are some sobering realities that the state policymakers must address:

·        If the AG’s report is correct about the poor quality of care and the inadequate numbers of nursing home staff, where were government regulators?  Nursing homes are licensed and regulated by the government; if the facilities’ performed in a substandard manner, why did it take a pandemic to bring light to these situations?

·        Why did it take the Attorney General of the state of New York to make this information public?  Requests for public access to the nursing home data has been pending for months.  The state dragged its feet and had the AG not acted; we might all still be in the dark.  How can the state’s Freedom of Information Law be improved to strengthen public access?

·        The wisdom of having a separately elected Attorney General (and for budget and state contracting matters a state Comptroller) could not be clearer.  Had the AG been appointed by the governor; would this investigation have occurred?

Now it’s up to the Legislature, which is a branch of government equal to the executive branch overseen by the governor, to do its job and dig deep into this issue.  The Legislature has been far too willing to cede its constitutionally-mandated power to oversee the executive branch.  And since the executive and legislative branches are now all controlled by one political party, this will be a test of where their loyalties lie – with the public or their political party.

In a healthy, functioning government hearings would be held, the Attorney General would testify, the state Health Commissioner would testify, nursing homes and hospitals would be questioned, reports would be written, and legislation prepared to respond to any policy failures – both with regard to the state’s response to the pandemic as well as any systemic regulatory failures that were identified in the AG’s report.

The Legislature is currently deliberating over the state’s budget.  At the end of this month, the Health Commissioner is scheduled to testify on the governor’s proposed health budget and related policy recommendations.  The quality of care offered in New York’s nursing homes, hospitals, and other health care settings should be at the top of the list when that hearing occurs.

Between now and then, lawmakers must get to work digging into the AG’s report and preparing for how best to respond.  Their response will be of critical importance – not only to have an accurate record of the state’s pandemic response, but also to ensure that our loved ones receive high quality care in nursing homes.

Blair Horner is executive director of the New York Public Interest Research Group.

The views expressed by commentators are solely those of the authors.They do not necessarily reflect the views of this station or its management.

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