Nursing homes across New York undercounted the number of residents who died from COVID-19 by as much as 50%, a report released by Attorney General Letitia James’ office has found.

James has been investigating nursing homes across the state since March 2020, based on allegations of patient neglect and other concerning conduct that may have jeopardized the health and safety of residents and employees, her office said.

AG James. Photo: Andrea Leonhardt for BK Reader.

The investigations found New York State Department of Healths published data on COVID-19 death tolls in nursing homes may have been undercounted by as much as 50%. The report shows the DOH data did not include nursing home residents who died in hospitals after being transferred from the homes, and deaths in nursing homes were also undercounted.

In one example, a nursing home reported five confirmed and six presumed COVID-19 deaths to DOH. However, to the Office of the Attorney General, the home reported a total of 27 COVID-19 deaths at the facility and 13 hospital deaths — a discrepancy of 29 deaths.

The investigations also revealed 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. Findings included nursing homes allowed COVID-19 infected patients to intermingle with the general population, failed to adequately screen or test employees for the virus and failed to obtain and train caregivers with PPE.

In New York, there are 619 nursing homes and 401 are for-profit, privately owned and operated entities. Of the for-profit facilities, more than two-thirds — 280 nursing homes — have the lowest possible CMS Staffing rating and as of November 2020, 3,487 COVID-19 resident deaths (over half of all deaths) occurred in these 280 facilities.

Some of these facilities have also been known to transfer facility funds to owners and investors, rather than use them to invest in additional staffing to care for residents, the report says.

In April 2020, James’ office set up a hotline to receive complaints from family members of nursing home residents prohibited from in-person visits. The office received more than 770 complaints on the hotline through August 3, and an additional 179 complaints through November 16. The office also continued to receive allegations of COVID-19-related neglect of residents through pre-existing reporting systems.

In one complaint, a man whose mother was in a for-profit nursing home in New York City alleged his mother was not receiving proper care because of critically low staffing levels at the facility. His mother was never tested for COVID-19, but later died while exhibiting COVID-19 symptoms.

Between late March and early April, the facility was so understaffed due to staff quarantining, working from home and pre-existing low staffing, that the onsite management of the entire facility was left in the hands of just two nurse supervisors.

During the week of April 5, 33 residents died at that facility, 15% of all its residents.

James, who is continuing investigations in more than 20 facilities, said it was imperative to understand why the residents of nursing homes in New York unnecessarily suffered at such an alarming rate.

“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,” she said.

“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 office said despite the “disturbing and potentially unlawful findings,” due to Governor Andrew Cuomo’s March 2020 limited immunity law for healthcare providers related to dealing with COVID-19, it was unclear to what extent facilities or individuals could be held accountable.

The Emergency Disaster Treatment Protection Act (EDTPA) provides immunity to healthcare professionals from potential liability arising from certain decisions, actions and omissions related to the care of individuals during the COVID-19 pandemic.

James said, although it was reasonable to provide some protections for health care workers it was not appropriate for nursing homes owners to use the law as blanket immunity. James recommends eliminating the newly enacted provisions.

James is encouraging anyone with information or concerns about nursing home conditions to file confidential complaints online or by calling 833-249-8499.

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Anna Bradley-Smith

Anna Bradley-Smith is Brooklyn-based reporter with bylines in NBC, VICE, Slate and others. Follow her on Twitter @annabradsmith.

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