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Attorney general says COVID deaths in nursing homes undercounted

Rose Weldon
New York Attorney General Letitia James has announced findings from investigations into the reactions of nursing homes to COVID-19. (Photo courtesy of Wikimedia Commons)

An investigation into the New York State Department of Health revealed that it had undercounted COVID-19 deaths in nursing homes, as well as a lack of compliance in protocols meant to curb infections in those facilities, Attorney General Letitia James announced last week.

James said in a statement on Jan. 28 that her office had been investigating nursing homes across the state “based on allegations of patient neglect and other concerning conduct that may have jeopardized the health and safety of residents and employees,” received as early as March 2020 and numbering over 900 since November. Over 20 nursing homes are under investigation as a result.

“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. “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.”

Findings from James’ office indicate that a larger number of nursing home residents died from COVID-19 than reported by the Health Department. Based on a survey of 62 nursing homes that found the state undercounted the fatalities there by an average of 56 percent, the data could push the department’s original tally of 8,711 COVID-19 deaths in nursing homes to more than 13,000.

The investigations also revealed that nursing homes’ lack of compliance with infection control protocols put residents at increased risk of harm, and facilities that had lower pre-pandemic staffing ratings had higher COVID-19 fatality rates.

At one for-profit facility on Long Island, COVID-19 patients who were transferred to the facility after a hospital stay were supposed to be placed in a separate COVID-19 unit in the nursing home but were scattered throughout the facility despite available beds in the COVID-19 unit. The report did not name the facility or any mentioned.

“This situation was allegedly resolved only after someone at the facility learned of an impending DOH infection control visit scheduled for the next day, before which those residents were hurriedly transferred to the appropriate designated unit,” the office said in a statement.

Even so, in spite of the findings, the office said the extent to which facilities can be held accountable for this remains unclear due to changes in state law, namely the Emergency Disaster Treatment Protection Act passed last March. The act provides immunity to health care professionals from potential liability arising from certain decisions, actions or omissions related to the care of individuals during the COVID-19 pandemic.

“While it is reasonable to provide some protections for health care workers making impossible health care decisions in good faith during an unprecedented public health crisis, it would not be appropriate or just for nursing homes owners to interpret this action as providing blanket immunity for causing harm to residents,” the office said. “In order to ensure no one can evade potential accountability, Attorney General James recommends eliminating these newly enacted immunity provisions.”

State Health Commissioner Howard Zucker said in a statement that the office’s findings concerning the nursing homes were consistent with the Department of Health’s own investigations.

“The Attorney General’s initial findings of wrongdoing by certain nursing home operators are reprehensible and this is exactly why we asked the Attorney General to undertake this investigation in the first place,” Zucker said. “To that end, DOH continues to follow up on all allegations of misconduct by operators and is actively working in partnership with the OAG to enforce the law accordingly.”

State Assemblyman Ed Ra (R-Garden City) responded to the report by calling for an investigation into the facilities.

“Today’s scathing report from the Office of the Attorney General is a stark reminder of why my colleagues and I have continually called for an investigation into the crisis in our nursing homes,” Ra said in a statement.

“These findings are serious and damning. Public trust is required to battle COVID-19. This is a deep betrayal and a sad failure. We can’t provide proper oversight and deliver real accountability from the sidelines. My colleagues in both houses of the Legislature must immediately remove the governor’s emergency powers and restore constitutionally required oversight. Transparency should never be this hard.”

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