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NY Tally of Covid Nursing Home Deaths Was Off by Half, Top Prosecutor Says

New York may have undercounted Covid-19 deaths of nursing home residents by as much as 50%, the state's attorney general said in a report released Thursday.

ALBANY (CN) — Twice as many nursing home residents died from Covid-19 than state data reflected, New York Attorney General Letitia James announced Thursday, having devoted nine months to studying disparities between the number of deaths being reported by the state and those that the nursing homes themselves reported.

The 52-page report, which has an additional 24 pages of appendices and endnotes, says that the total nursing home death data published by the state Department of Health did not include the many nursing home residents who were transferred to a hospital before they died of Covid-19. Underreporting from some nursing homes also occurred, James added, noting that more than 20 facilities are under investigation by her office.  

In the early months of the deadly pandemic last year, New York was both a national and global leader in infections and deaths. Hospitals and morgues were overrun, and the media disseminated devastating images of hundreds of bodies that had to be stored in freezer trucks until facilities could make room.

The state has reported 34,742 deaths in total from the virus as of Wednesday, with 8,711 deaths in nursing homes statewide as of Tuesday. It is unclear how the newly detailed discrepancies will change that count, as it reflects only a sample of the state's roughly 600 nursing homes.

New York state Health Commissioner Dr. Howard Zucker rejected assertions that the OAG report found any undercounting of nursing home deaths, and instead maintained that the Health Department was always clear that the data on its website pertains to in-facility fatalities and does not include deaths outside of a facility. 

“Ultimately, the OAG's report demonstrates that the recurring problems in nursing homes and by facility operators resulted from a complete abdication by the Trump administration of its duty to manage this pandemic,” Zucker said in a statement Thursday afternoon. “With no uniform processes or reporting mechanisms, every state reported data in different ways. And data requests from federal CMS, HHS and CDC at various points in the pandemic muddied the reporting across the board."

James’ office studied 62 facilities that had reported 1,914 deaths of residents from Covid-19 between March 1, 2020, and the date they responded to the attorney general’s request, some time between April 12 and July 19.

During the same period, the state Department of Health records reported 1,229 deaths at those same nursing homes. Applying that same pattern of miscounting statewide, James' report said, it would mean the state is underreporting deaths by nearly 56%. 

"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 in a statement Thursday. "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." 

The investigation also found that nursing home with low staffing ratings had higher fatality rates. 

Medical personnel remove their personal protective equipment after delivering a bodies from the Wyckoff Heights Medical Center to refrigerated containers parked outside, Thursday, April 2, 2020 in the Brooklyn borough of New York. As coronavirus hot spots and death tolls flared around the U.S., the nation's biggest city was the hardest hit of the all, with bodies loaded onto refrigerated morgue trucks by gurney and forklift outside overwhelmed hospitals, in full view of passing motorists. (AP Photo/Mary Altaffer)

According the report, the Office of the Attorney General received numerous complaints that some nursing homes failed to implement proper infection controls to prevent or mitigate the transmission of Covid-19 to vulnerable residents, including failing to properly isolate residents who tested positive for Covid-19 and demanding that sick employees continue to work and care for residents or face retaliation or termination. 

Insufficient personal protective equipment (PPE) and lacking testing for residents and staff also put residents at increased risk of harm during the pandemic in some facilities, the investigation found. 

To ensure that nursing home authorities face full accountability, Attorney General James recommended eliminating limited immunity provisions created by Cuomo in March 2020 under The Emergency Disaster Treatment Protection Act, which granted immunity to health care professionals from potential liability arising from certain decisions, actions and 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,” James wrote. 

Brian Lee, executive director for the nursing home advocacy group Families for Better Care, called James’ findings “outstanding” but unsurprising. 

“I think it needs to be replicated in every state,” he said in a phone interview Thursday. “This is pretty much the garden variety of problematic pandemic care in nursing homes.”  

“What’s she’s uncovered is the fact there’s been an almost deliberate misrepresentation by public officials and what’s transpired with nursing home care and safety during this pandemic.” 

“Cuomo’s not the only one, it’s happening elsewhere, whether Republican or Democratic,” he added.

Last August, the Trump administration’s Justice Department sent a letter to Cuomo requesting data to determine if the federal government should open a civil rights investigation into the state’s handling of the Covid-19 pandemic at nursing homes run by the state. 

Assistant Attorney General Eric Dreiband, from the civil rights division, wrote that the department was considering probe of the nursing homes “owned, operated, or managed by” the state, under the Civil Rights of Institutionalized Persons Act. 

A month later, Trump took to Twitter to attack Cuomo’s handling of the pandemic and blaming the Democratic governor for thousands of deaths in nursing homes in the state. “Governors [sic] Andrew Cuomo of New York has the worst record on death and China Virus,” Trump tweeted. “11,000 people alone died in Nursing Homes because of his incompetence!”  

In recent public statements, the governor has celebrated the reining in of New York’s “holiday surge.”

"Our infection and hospitalization rates are steadily declining thanks to the actions of New Yorkers, but there is still more work to be done,” he said. “While more vaccines are on the way from the Biden administration, we must continue actively working to protect our hospitals and their staff to help ensure they do not become overwhelmed.” 

Residents and staff at nursing homes and other congregate care facilities are eligible for the vaccine in the state’s first phase of distribution, along with all front-line, high-risk public health workers. 

Registerd Nurse Shyun Lin, left, gives Roberto Fisher, 72, the first dose of the COVID-19 vaccine at a pop-up vaccination site in the William Reid Apartments Saturday, Jan. 23, 2021 in the Brooklyn borough of New York. (AP Photo/Mary Altaffer, Pool)
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