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NY AG: State Health Dept. Undercounting Nursing Home Deaths

A screenshot of the New York Attorney General's report on nursing homes
A screenshot of the New York Attorney General's report on nursing homes

New York Attorney General Letitia James released a report Thursday finding that the state health department may have undercounted COVID-19 deaths in nursing homes by as much as 50 percent. The Democrat says her office also found that nursing homes’ lack of compliance with infection controls put residents at increased risk, and facilities that had less pre-pandemic staffing had higher COVID fatality rates.

The state health department has refused to release updated data on the number of nursing home residents who were transferred to hospitals where they later died of COVID. State lawmakers are considering a subpoena for the state health commissioner to provide the information they claim is leading the state to undercount nursing home fatalities.

Credit Screenshot of data from New York Attorney General's report

“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,” Attorney General James said in a 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 homes 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.”

James says her office is investigating more than 20 nursing homes for their handling of the pandemic.

The state Department of Health, to date, has only publicly reported deaths at nursing homes if the resident died in the care of the facility. Residents who were transferred to the hospital before their death have not been counted in the state’s nursing home data.

As of Wednesday, the state Department of Health had reported close to 9,000 deaths at New York’s nursing homes.

But that number is likely a drastic undercount, the state Attorney General’s Office said in the report, and could be as much as double what’s been publicly reported. That would confirm suspicions from lawmakers and watchdog groups who’ve questioned the state’s count.

According to the report, the state Attorney General’s Office collected data from nursing homes on deaths both within and outside the facility, and those numbers were higher than what had been reported by the state.

When the numbers were crunched, the state Attorney General’s Office estimated that the data publicly released by the state Department of Health had undercounted deaths at nursing homes by approximately 50%.

“[The Office of the Attorney General] is investigating those circumstances where the discrepancies cannot reasonably be accounted for by error or the difference in the question posed,” the report said.

Conditions at nursing homes may have also contributed to a higher fatality rate, the report said.

First, the Attorney General’s Office found that some facilities did not follow proper infection control protocols. That included a failure to separate residents diagnosed with COVID-19 from the general population, in some cases, according to the report.

There were also reports that some nursing homes demanded that employees with symptoms of the virus continue working with residents, and that employees weren’t adequately screened or tested for COVID-19.

“Clearly, some facilities were not prepared to handle outbreaks through early and effective training or staffing,” the report said.

The report also found that more than two-thirds of the state’s nursing homes had the lowest-possible staffing ratings from the federal government, meaning there weren’t enough staff for the number of residents at those facilities.

According to the report, there were more fatalities at facilities with lower staffing levels.

“Given the complaints of neglect received during the COVID-19 pandemic and the OAG investigation findings to date, the pandemic has laid bare the risks to vulnerable nursing home residents that are inherent in a low staffing business model,” the report said.

The report also recommended that the state reverse a new law that essentially provides certain legal immunity to nursing homes related to the care of individuals during the COVID-19 pandemic.

Lawmakers from both sides of the aisle issue statements reacting to the report's findings. Senate Majority Leader Andrea Stewart-Cousins, who's left the door open for issuing a subpoena to the state Department of Health, said she was reviewing the report and that it could be used for a legislative response.

"Northing will bring back our loved ones that we lost but it is crucial that information guides our responses so this will not happen again," Stewart-Cousins said.

Senate Minority Leader Rob Ortt, a Republican from Niagara County, went further, calling for Health Commissioner Howard Zucker to immediately resign.

"By underreporting COVID deaths in nursing homes by as much as 50 percent, the Department of Health has betrayed the public trust. To repair that broken trust, I am calling on Health Commissioner Howard Zucker to resign," Ortt said.

Health Commissioner Zucker issued the following statement Thursday afternoon:

"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," Zucker said. "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."

Read the full report:

Dan Clark is the managing editor of New York NOW, a product of public media covering state government, policy, and politics.

Jim is WAMC’s Assistant News Director and hosts WAMC's flagship news programs: Midday Magazine, Northeast Report and Northeast Report Late Edition. Email: jlevulis@wamc.org
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