Fatalities at nursing homes undercounted by as much as 50%: Attorney general report

Fatalities at nursing homes across New York due to COVID-19 were undercounted by as much as 50% as residents who died at hospitals were not included in that data, according to a report released Thursday by New York Attorney General Letitia James.

Discrepancies in data released by the State Department of Health has been a point of contention ever since the initial COVID outbreak resulted in thousands of deaths in nursing homes and assisted living facilities. State lawmakers held a pair of public hearings last summer to question officials such as Dr. Howard Zucker, the state health commissioner, on the state’s handling of nursing homes and the data that had been released.

Preliminary findings from the attorney general’s report found that not only did a larger number of nursing home residents die from COVID-19 than the DOH data reflects, but insufficient personal protective equipment for nursing home staff and inadequate testing for residents and staff at the beginning of the pandemic put residents at higher risk in some facilities.

The 76-page report from the office of Ms. James, a Democrat, outlines several recommendations, such to ensure that public reporting of nursing home deaths at facilities and deaths that occur during or after hospitalization can be done to avoid creating a “double-counting.” Residents who died at hospitals had not been counted in the state data, which lawmakers pointed out during the hearings was unlike how other states count fatalities.

Ms. James and her office have been investigating nursing homes in New York since March, she said.

“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,” Ms. James said in a statement. “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 AG report says preliminary data analysis shows “many residents died from COVID-19 in hospitals after being transferred from their nursing homes.”

The analysis was done by examining 62 nursing homes. For example, one facility reported five confirmed and six presumed COVID-19 deaths as of Aug. 3 to the DOH. But in the report to the AG, a total of 27 COVID-19 deaths at the facility and 13 hospital deaths were reported. The nursing homes were not identified by name.

A chart in the report shows that facility deaths as reported by the AG was 1,914 compared to 1,229 as published by the DOH, based on the analysis of the 62 nursing homes.

Current data through Jan. 27 from the DOH shows more than 8,900 confirmed and presumed deaths at both nursing homes and adult care facilities.

Dr. Zucker issued a lengthy response to the attorney general’s report Thursday and said it “makes clear that there was no undercount of the total death toll from this once-in-a-century pandemic.” Dr. Zucker maintained that total count provided by the state is accurate and fatalities within hospitals were always reported “irrespective of the residence of the patient.”

The DOH data made clear that the number only reflected in-facility fatalities, which is noted in the attorney general’s report.

Dr. Zucker said the DOH began an audit of fatality numbers months ago to resolve discrepancies such as a death being recorded at a hospital and nursing home. The audit, he said, remains ongoing, and to date shows that from March 1, 2020 to Jan. 19, 2021, there were 9,786 confirmed fatalities associated with skilled nursing facility residents: 5,957 within nursing facilities and 3,829 within a hospital.

“This represents 28% of New York’s 34,742 confirmed fatalities — below the national average,” Dr. Zucker said. “Nationally, the Kaiser Family Foundation lists 146,888 nursing home fatalities, 35% of the 423,519 total fatalities reported by the CDC in the United States to date.”

The AG’s office is investigating “circumstances where the discrepancies cannot reasonably be accounted for by error or the difference in the question posed.”

The report also finds that the government guidance that required admission of COVID-19 patients into facilities “may have put residents at increased risk of harm in some facilities and may have obscured the data available to assess that risk.”

Gov. Andrew Cuomo and the DOH has consistently defended its handling of nursing homes and the controversial directive in March that said facilities cannot discriminate against a COVID-positive patient. The guidance was rescinded in May once hospital capacity was no longer as great a concern. A report released by the DOH in July asserted that spread in nursing homes was unknowingly driven by asymptomatic employees who entered facilities at the start of the pandemic. The governor at the time called it a “political conspiracy theory” to claim deaths in nursing homes could have been prevented.

The AG report notes that 4,000 nursing homes deaths occurred after the March 25 guidance, including some in 323 facilities that “apparently had no reported COVID-19 infections before receiving admissions or re-admissions of hospital residents who had been diagnosed with COVID-19.” Additional data and analysis would be needed to outline effects on individual facilities, the report says.

Dr. Zucker said the attorney general’s report notes that the March 25 guidance was consistent with the Centers for Disease Control and Prevention and U.S. Centers for Medicaid and Medicare Services.

“Additionally, the OAG report found no evidence that any nursing home lacked the ability to care for patients admitted from hospitals,” Dr. Zucker said.

State Sen. Gustavo Rivera (D-Bronx), who is Chair of the Senate Health Committee, issued a statement Thursday calling the findings in the report “disturbing” but unsurprising.

“As my team and I conduct an in-depth review of the report, it is critical that the Cuomo administration finally releases accurate data on nursing homes deaths, which my colleagues and I have been requesting for months,” he said. “Families who lost loved ones deserve honest answers. For their sake, I hope that this report will help us avail the truth and put policies in place to prevent such tragedies in the future.”

Assemblywoman Jodi Giglio (R-Riverhead) said in a statement that the report “speaks volumes.”

“We can no longer allow the governor to have total control of our COVID response, we need to work collaboratively to find solutions to the many problems COVID has caused,” she said.

“I am proud to stand by my colleagues and will work towards a bipartisan vote to remove his emergency powers and to restore legislative oversight. Residents of nursing homes and their families have suffered. It is time to give the power back to the people. We need truth and solutions.”

The report also found that nursing homes with lower staffing ratings by the CMS had higher COVID-19 fatality rates. Communication between facilities and families was also lacking and “caused avoidable pain and distress.”

The current data published by the DOH shows 19 confirmed COVID-19 deaths at Acadia Center for Nursing and Rehabilitation in Riverhead plus one presumed death. Acadia has a three-star (out of 5) staff rating by the CMS. Peconic Bay Medical Center’s Skilled Nursing Facility has 18 confirmed fatalities, a figure officials at PBMC said was inflated by overflow COVID patients being moved into that space during the height of the pandemic. The facility has a five-star staffing rating.

In Southold Town, Peconic Landing at Southold has six confirmed deaths plus one presumed, while The Shores at Peconic Landing assisted living residence adds another two confirmed and one presumed. Peconic Landing had reported at least 13 fatalities across its entire campus — eight of which were specifically in the nursing home facility — due to COVID back in May, according to prior reports. Peconic Landing at Southold has a five-star staffing rating.

One fatality is listed for San Simeon by the Sound in Greenport, although the facility has acknowledged at least three fatalities this month. San Simeon has a two-star staffing rating.

Anyone with information or concerns about nursing home conditions can file confidential complaints online or call 833-249-8499.