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Harsh Criticism After Scathing Report From AG James On Nursing Home Deaths

New York Attorney General Tish James
New York Attorney General Tish James

A report by New York’s Attorney General finds that Governor Andrew Cuomo’s administration may have undercounted by as much as 50 percent the number of the state’s nursing home residents who died at the height of  the COVID-19 pandemic in New York last spring. The news has led the Republican leader of the State Senate to call for the resignation of the state health commissioner. 

The number of nursing home residents who died from Covid has been in dispute for months.  The state health department has said 8,711 residents died of the disease, but has not released key data, including the number of residents who died after they were transferred to a hospital.   

Attorney General Tish James, who, like Cuomo, is a Democrat, and an ally of the governor, says investigators examined a sample of 62 or about ten percent of the state’s 600 nursing homes. The homes reported 1,914 deaths of residents from COVID-19, but the Department of Health reported 1,229 deaths at those same facilities.

In one example a nursing home reported five confirmed and six presumed COVID-19 deaths at the facility as of August 3 to the state health department. But the nursing home told the Attorney General’s investigators that there were a total of 27 COVID-19 deaths at the facility and 13 hospital deaths. That’s a discrepancy of 29 deaths.

Senator Jim Tedisco, a minority party Republican from Schenectady, has been asking Democrats who are in the Majority in his house to subpoena the health department to obtain the death records. He says he hopes the Attorney General’s report will now expedite those efforts, and he wonders why the Cuomo Administration did not just hand over the data when lawmakers asked for it last summer.

“The cover up can be worse, in many instances than what you are going to cover up,” said Tedisco. “Today the Attorney General has lifted the veil that was hiding the important real numbers of nursing home lives that have been lost under the governor’s leadership.”

Tedisco and others have criticized a controversial March 25 directive from the health department that nursing homes had to accept patients who were still ill with the coronavirus back into the nursing homes. They say that decision led to more deaths as the infection spread in the homes.

Governor Cuomo has blamed right wing media outlets for the controversy.

Commissioner Zucker, in a report last July, blamed asymptomatic nursing home workers for the deaths.  He did not provide the specific dates when the nursing home residents were first diagnosed with the virus.

Senate GOP Leader, Rob Ortt, is calling for Zucker’s resignation, saying he betrayed the public trust. 

“How can he lead when we have this report that shows he lied to the people of New York?” Ortt said. “He has no credibility. His department has no credibility." 

Democrats, who hold the majority in the legislature, are also expressing concern. The Chair of the Senate Investigations Committee, Jim Skoufis, hinted earlier in the week that he might issue subpoenas if the health department did not release the data by a scheduled legislative budget hearing on February 3rd.

“We’re all very upset that we haven’t gotten these answers,” Skoufis said.

That hearing has now been postponed until February 25. A spokesman for the governor told the Albany Times Union that the hearing needed to be postponed so it would not interfere with the governor’s pre scheduled three times a week coronavirus briefings. Skoufis, in a statement, says if Zucker does not produce the data by the new date then he “will support a move to compel the information." 

The Attorney General’s report also finds that many nursing homes failed to comply with critical infection control polices, and that staff had insufficient personal protection equipment, including masks and gloves. Nursing homes with the lowest staff to patient ratios also had the highest number of deaths, the report finds.

Because of immunity provisions enacted in an emergency order by Cuomo, the nursing homes cannot be held liable for any of the missteps detailed in the report that could have led to more deaths. AG James recommends rescinding the immunity provisions.

Health Commissioner Zucker responded in a statement Thursday afternoon. He disputes the Attorney General’s characterization of an “undercount,” saying the additional deaths of nursing home residents that the investigators discovered are already listed under total hospital deaths. And he shifts blame for the numbers discrepancy to the nursing homes, saying they should be investigated for possibly submitting false information to the department.    

Zucker says the health department is conducting an audit of reported deaths from COVID-19, and while it is not complete, it has revealed that at least 3,800 more nursing home residents died of the disease than is currently reported on the department’s website, for a total of 12,742. He says in the recount, 9,786 confirmed fatalities have been associated with Skilled Nursing Facility residents, including 5,957 fatalities within nursing facilities, and 3,829 within a hospital. There are also 2,957 nursing home fatalities that are presumed to have occurred beacuse of COVID-19, but the cause of death was not confirmed due to a shortage of testing materials. 

"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 in the statement. "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."

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