New York severely undercounted virus deaths in nursing homes, report says

Jesse McKinley and Luis Ferr-Sadurn,

New York Times Service

January 28, 2021 | 5:26 PM

ALBANY, N.Y. — An investigation by the New York state attorney general has concluded that Gov. Andrew Cuomo’s administration undercounted coronavirus-related deaths at nursing homes by as much as 50%.

The count of deaths in the state’s nursing homes has been a source of controversy for Cuomo and state Health Department officials, who have been sensitive to any suggestion that decisions made at the outset of the pandemic may have caused some of those deaths, which the state puts at more than 8,700.

They have also been accused of obscuring a more accurate estimate of nursing home deaths, because the state’s count only included the number of deaths at the facilities, rather than accounting for the residents who died at a hospital after being transferred there.

In the 76-page report released Thursday by Attorney General Letitia James, a survey of nursing homes found consistent discrepancies between deaths reported to the attorney general’s investigators and those reported to and officially released by the Health Department.

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 the home and 13 in hospitals.

Another facility reported one confirmed and six presumed COVID-19 deaths to the Health Department, according to the report. The attorney general’s office, however, said the facility reported to its investigators that there were more than four times that number — 31 dead — by mid-April.

Deaths in nursing homes and other long-term care facilities have accounted for about one-third of the nation’s some 430,000 deaths. Federal and state authorities have made vaccinating staff and residents at such facilities a top priority, though that effort has been slower than hoped.

In New York, where there have been more than 42,000 virus-related deaths, the toll in the state’s nursing homes has been a particular source of agony for residents and their families. It has also been a political liability for Cuomo, who has pushed back on accusations that his administration did not do enough to safeguard a highly vulnerable population.

The thousands of deaths at New York’s nursing homes have been a potent line of attack for Republicans. Cuomo’s profile rose as he earned plaudits for New York’s early response to the epidemic — a narrative that the governor has burnished with a bestselling memoir about his performance during the crisis.

Yet the critiques have increased in intensity and are now even being echoed by some of Cuomo’s fellow Democrats, including James.

In particular, the governor has been criticized for a March 25 directive from the Health Department that ordered nursing homes to accept and readmit patients who had tested positive.

While acknowledging that Cuomo’s directive to nursing homes was consistent with federal guidance, the attorney general’s report said the governor’s policy “may have put residents at increased risk of harm in some facilities.”

The Health Department and Cuomo’s office had no immediate comment. But in late July, the Health Department released a report that rejected the assertion that the March 25 policy might have led to outbreaks in nursing homes, finding instead that most of those patients “were no longer contagious when admitted and therefore were not a source of infection.” The Health Department report concluded that the virus was instead spread by employees who did not know they were contagious.

Yet James’ report found a number of homes that “failed to comply with critical infection-control policies,” including failing to isolate residents who had tested positive for the virus or screen employees for it.

James’ report was sure to inspire more questions about the handling and performance of the state’s nursing homes in the early stages of the pandemic. Indeed, on Thursday, critics in Washington and Albany seized on the findings as evidence of dishonesty by Cuomo and his health commissioner, Dr. Howard Zucker. Republicans, who are in the minority in both houses of the Legislature, called on Zucker to resign.

“The Department of Health has betrayed the public trust,” said Rob Ortt, the minority leader in the state Senate.

The findings of James would seem to put her in rare conflict with Cuomo, the state’s three-term Democratic incumbent. James was the governor’s favored choice to succeed Eric Schneiderman after he suddenly resigned as attorney general in 2018; she readily embraced Cuomo’s political backing.

The state’s reporting of nursing home deaths has been the focus of a lawsuit by a conservative economic think tank, the Empire Center for Public Policy, which has sued, seeking to force the Health Department to release more complete data.

Last year, the Democratic-controlled Legislature held hearings partly in an attempt to pry the data from the administration, to no avail.

The Democratic chair of the investigations and government operations committee in the state Senate, James Skoufis, who has accused the Health Department of stonewalling investigators, suggested Thursday that he would use a subpoena to compel the release of data from Zucker’s office. “The DOH commissioner’s unresponsiveness to the Legislature’s many questions and concerns is insulting and unacceptable,” the senator said in a statement.

Zucker was supposed to testify next week during a state budget hearing, where lawmakers were expected to press him on nursing home deaths, but his appearance was recently pushed back to late February.

The attorney general asked 62 nursing homes — about one-tenth of the state’s total — for information about on-site and in-hospital deaths related to the virus; investigators then cross-referenced that information with public reports of deaths issued by the Health Department. The deaths reported to the attorney general’s office at most of those facilities totaled 1,914, compared to the state’s much lower count of 1,229.

James said that her office was investigating those circumstances “where the discrepancies cannot reasonably be accounted for by error or the difference in the question posed.”

The attorney general said she was continuing to conduct investigations of more than 20 nursing homes across the state that “presented particular concern,” noting that “other law enforcement agencies also have ongoing investigations relating to nursing homes.”

Under normal circumstances, the attorney general’s office “would issue a report with findings and recommendations after its investigations and enforcement activities are completed,” James said in her report. “However, circumstances are far from normal.”

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