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Attorney general on nursing homes: Investigations reveal DOH publicly reported data undercounted COVID-19 deaths

Thu, Jan 28th 2021 04:00 pm

James: Many nursing homes failed to comply with critical infection control policies

AG conducting ongoing investigations into more than 20 facilities

Attorney General Letitia James on Thursday released a report on her office’s ongoing investigations into nursing homes’ responses to the COVID-19 pandemic. Since March, James has been investigating nursing homes throughout New York state based on allegations of patient neglect and other concerning conduct that may have jeopardized the health and safety of residents and employees.

Among those findings were that a larger number of nursing home residents died from COVID-19 than the New York State Department of Health’s (DOH) published nursing home data reflected and may have been undercounted by as much as 50%. 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 prepandemic staffing ratings had higher COVID-19 fatality rates. Based on these findings and subsequent investigation, James is conducting ongoing investigations into more than 20 nursing homes whose reported conduct during the first wave of the pandemic presented particular concern.

“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 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.”

Background

The Office of the Attorney General (OAG) is the only law enforcement agency in the state specifically mandated to investigate and prosecute abuse and neglect of residents in nursing homes. In early March 2020, OAG received and began to investigate allegations and indications of COVID-19-related neglect of residents in nursing homes. At the direction of Gov. Andrew Cuomo, on April 23, OAG set up a hotline to receive complaints relating to communications by nursing homes with family members prohibited from in-person visits to nursing homes and formally initiated a large-scale investigation of nursing homes’ responses to the pandemic. OAG received more than 770 complaints on the hotline through Aug. 3, and an additional 179 complaints through Nov. 16. OAG also continued to receive allegations of COVID-19-related neglect of residents through preexisting reporting systems.

Overview of Findings

The report includes preliminary findings based on data obtained in investigations conducted to date, recommendations that are based on those findings, related findings in prepandemic investigations of nursing homes, and other available data and analysis. Based on this information and subsequent investigation, OAG is currently conducting investigations into more than 20 nursing homes across the state. OAG found:

√ A larger number of nursing home residents died from COVID-19 than DOH data reflected;

√ Lack of compliance with infection control protocols put residents at increased risk of harm;

√ Nursing homes that entered the pandemic with low U.S. Centers for Medicaid and Medicare Services (CMS) Staffing ratings had higher COVID-19 fatality rates;

√ Insufficient personal protective equipment (PPE) for nursing home staff put residents at increased risk of harm;

√ Insufficient COVID-19 testing for residents and staff in the early stages of the pandemic put residents at increased risk of harm;

√ The current state reimbursement model for nursing homes gives a financial incentive to owners of for-profit nursing homes to transfer funds to related parties (ultimately increasing their own profit) instead of investing in higher levels of staffing and PPE;

√ Lack of nursing home compliance with the executive order requiring communication with family members caused avoidable pain and distress; and

√ Government guidance requiring the admission of COVID-19 patients into nursing homes may have put residents at increased risk of harm in some facilities and may have obscured the data available to assess that risk.

Undercounting of COVID-19 Deaths in Nursing Homes

Preliminary data obtained by OAG suggests many nursing home residents died from COVID-19 in hospitals after being transferred from their nursing homes, which is not reflected in DOH’s published total nursing home death data. Preliminary data also reflects apparent underreporting to DOH by some nursing homes of resident deaths occurring in nursing homes. In fact, the OAG found nursing home resident deaths appear to be undercounted by DOH by approximately 50%.

OAG asked 62 nursing homes (10% of the total facilities in New York) for information about on-site and in-hospital deaths from COVID-19. Using the data from these 62 nursing homes, OAG compared: (1) in-facility deaths reported to OAG compared to in-facility deaths publicized by DOH, and (2) total deaths reported to OAG compared to total deaths publicized by DOH.

In one example, a facility reported five confirmed and six presumed COVID-19 deaths at the facility as of Aug. 3 to DOH. However, the facility reported to OAG a total of 27 COVID-19 deaths at the facility and 13 hospital deaths – a discrepancy of 29 deaths.

Lack of Compliance with Infection Control Policies

OAG 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. Among those reports were allegations that several nursing homes around the state failed to plan and take proper infection control measures, including:

√ Failing to properly isolate residents who tested positive for COVID-19;

√ Failing to adequately screen or test employees for COVID-19;

√ Demanding that sick employees continue to work and care for residents or face retaliation or termination;

√ Failing to train employees in infection control protocols; and

√ Failing to obtain, fit, and train caregivers with PPE.

For instance, OAG received a complaint that at a for-profit nursing home located north of New York City, residents who tested positive for COVID-19 were intermingled with the general population for several months because the facility had not yet created a “COVID-19 only” unit.

At another for-profit facility on Long Island, COVID-19 patients who were transferred to the facility after a hospital stay and were supposed to be placed in a separate COVID-19 unit in the nursing home were, in fact, scattered throughout the facility despite available beds in the COVID-19 unit. 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.

OAG received reports that nursing homes did not properly screen staff members before allowing them to enter the facility to work with residents. Among those reports, OAG received an allegation that a for-profit nursing home north of New York City failed to consistently conduct COVID-19 employee screening. It was reported that some staff avoided having their temperatures taken and answering a COVID-19 questionnaire at times when the screening station at the facility’s front entrance had no employees present to take that information or when staff entered the facility through a back entrance, avoiding the screening station altogether.

At yet another facility in Western New York, a nurse reported to OAG that, immediately prior to the facility’s first DOH inspection in late April, a nurse supervisor had set up bins in front of the units with gowns and N95 masks to make it appear that the facility had an adequate supply of appropriate PPE for staff. The nurse alleged that the nurse supervisor came in to work unusually early the day of the first inspection and brought out all new PPE and collected all of the used gowns. Although the initial DOH survey conducted that day did not result in negative findings, DOH returned to the facility for follow-up inspections, issued the facility several citations, and ultimately placed the facility in “Immediate Jeopardy.”

Nursing Home with Low Staffing Ratings Had Higher Fatality Rates

There are 619 nursing homes in New York, and 401 of these facilities are for-profit, privately owned, and operated entities. Of the state’s 401 for-profit facilities, more than two-thirds – 280 nursing homes – have the lowest possible CMS Staffing ratings. The staffing rating reflects the number of staffing hours in the nursing department of a facility relative to the number of residents. As of Nov. 16, 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 OAG said “preexisting, insufficient staffing levels put residents and staff at increased risk of harm during the pandemic. As nursing home resident and staff COVID-19 infections rose during the initial wave of the pandemic, staffing absences increased at many nursing homes. As a result, already-low staffing levels decreased even further, to especially dangerous levels in some homes, even as the need for care increased due to the need to comply with COVID-19 infection control protocols and the loss of assistance from family visitors. OAG’s preliminary investigations reflect many examples where for-profit nursing homes’ prepandemic low staffing model simply snapped under the stress of the pandemic.”

OAG received a complaint from a resident’s son about a for-profit nursing home in New York City alleging 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 preexisting 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.

In addition, preliminary investigations indicate that, when there were insufficient staff to care for residents, some nursing homes pressured, knowingly permitted, or incentivized existing employees who were ill or met quarantine criteria to report to work and even work multiple consecutive shifts, in violation of infection control protocols. These policies put both residents and staff at great risk.

Immunity Provisions

OAG said, “Despite these disturbing and potentially unlawful findings, due to recent changes in state law, it remains unclear to what extent facilities or individuals can be held accountable if found to have failed to appropriately protect the residents in their care.”

On March 23, Cuomo created limited immunity provisions for health care providers relating to COVID-19. The Emergency Disaster Treatment Protection Act (EDTPA) provides immunity to health care professionals from potential liability arising from certain decisions, actions and/or omissions related to the care of individuals during the COVID-19 pandemic.

OAG said, “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.”

In order to ensure no one can evade potential accountability, James recommends eliminating these newly enacted immunity provisions.

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

This report is the collective product of investigative work undertaken since March 2020 by the Medicaid fraud control unit's (MFCU) 275 attorneys, forensic auditors, police investigators, medical analysts, data scientists, electronic investigation team, legal assistants and support staff in eight offices across New York. MFCU is led by Director Amy Held and Assistant Deputy Attorney General Paul J. Mahoney. MFCU is a part of the division for criminal justice, which is led by Chief Deputy Attorney General for Criminal Justice José Maldonado and overseen by First Deputy Attorney General Jennifer Levy.

MFCU receives 75% of its funding from the U.S. Department of Health and Human Services under a grant award totaling $60,071,905 for federal fiscal year (FY) 2019-20, of which $45,053,932 is federally funded. The remaining 25% of the approved grant, totaling $15,017,973 for FY 2019-20, is funded by New York state. Through MFCU’s recoveries by means of law enforcement actions and civil enforcement actions, it regularly returns more to the state than it receives in state funding.

Response

New York State Senate Republican Leader Rob Ortt released a statement that read, “The report released today by the attorney general is confirmation for the thousands of families who lost loved ones to COVID-19 in New York nursing homes. For months, Gov. Cuomo and his administration have refused to be transparent or take any responsibility for actions they have taken during this public health crisis – including the deadly March 25, 2020, order to send COVID-positive patients into nursing homes.

“By underreporting COVID deaths in nursing homes by as much as 50%, the Department of Health has betrayed the public trust. To repair that broken trust, I am calling on Health Commissioner Howard Zucker to resign.”

Congressman Chris Jacobs, R-NY-27, said, “Two days ago, Gov. Cuomo callously remarked ‘incompetent government kills.’ Tragically, those words can now clearly be used to describe the actions of his own administration. Gov. Cuomo directly jeopardized the health and safety of thousands of nursing home residents with his directive mandating COVID-positive patients be accepted back. As a result, thousands of our seniors died after contracting COVID-19. For months, the governor has refused to take responsibility, and his Department of Health commissioner has refused to provide transparent information to elected officials and grieving families.

“New York Attorney General Letitia James’ report finally shows what we have all suspected for months. Gov. Cuomo and his administration could be complicit in a cover-up of the true effects of this disastrous decision. Gov. Cuomo, Commissioner Zucker, and any member of the administration who had a hand in this callous decision must be held accountable.

“The grieving New York families who have been brushed aside by Gov. Cuomo deserve justice, and we must ensure they get it.”

Assemblyman Mike Norris, R-C-Lockport, said, “On behalf of the constituents who have been pleading for answers regarding the health and well-being of their loved ones in nursing homes over the past 11 months, I am outraged by the results of the attorney general’s report, which confirmed our worst fears — that Gov. Cuomo’s administration has been hiding as many as 50% of nursing home deaths.

“It is beyond shameful. The State Legislature should immediately, as I have been calling for time and time again since July 1, 2020, strip the governor of any and all emergency powers he has exercised for way too long during this pandemic. We should restore our legislative authority and begin to do our jobs in representing the people. New York state’s government was set up with a division of power for this very purpose – with checks and balances. Attorney General James has at last done her job by issuing this report. The downstate-driven, one-party-controlled State Legislature must do their jobs now before another life is lost or more facts are hidden from the public.

“Taxpayers deserve open and transparent government. Where is the accountability from the administration here? For example, I have been asking the Health Department for months for a basic breakdown of how coronavirus deaths are being recorded and have yet to receive a response to my repeated inquiries. Taxpayers and lawmakers deserve responses to these questions. I hope that my legislative colleagues take action now to remove these governor’s extraordinary powers and schedule appropriate hearings immediately using subpoena power, if necessary, to get answers that have been dodged for so many months.

“Seniors are so frustrated by the vaccine rollout, small businesses have been crippled by over-burdensome restrictions, and nursing deaths were hidden. Action to restore constitutional balance by the one-party, downstate-driven majorities in the Legislature is way overdue. Let’s get back to the real work that New Yorkers demand.”

Statement from New York State Health Commissioner Dr. Howard Zucker in response to OAG report

New York State Health Commissioner Dr. Howard Zucker issued the following statement in response to Attorney General Letitia James’ investigation on nursing home coronavirus data:

The New York State Office of the Attorney General report is clear that there was no undercount of the total death toll from this once-in-a-century pandemic. The OAG affirms that the total number of deaths in hospitals and nursing homes is full and accurate. New York State Department of Health has always publicly reported the number of fatalities within hospitals irrespective of the residence of the patient, and separately reported the number of fatalities within nursing home facilities and has been clear about the nature of that reporting. Indeed, the OAG acknowledges in a footnote on page 71 that DOH was always clear that the data on its website pertains to in-facility fatalities and does not include deaths outside of a facility. The word "undercount" implies there are more total fatalities than have been reported; this is factually wrong. In fact, the OAG report itself repudiates the suggestion that there was any "undercount" of the total death number.

The OAG's report is only referring to the count of people who were in nursing homes but transferred to hospitals and later died. The OAG suggests that all should be counted as nursing home deaths and not hospital deaths even though they died in hospitals. That does not in any way change the total count of deaths but is instead a question of allocating the number of deaths between hospitals and nursing homes. DOH has consistently made clear that our numbers are reported based on the place of death. DOH does not disagree that the number of people transferred from a nursing home to a hospital is an important data point, and is in the midst of auditing this data from nursing homes. As the OAG report states, reporting from nursing homes is inconsistent and often inaccurate.

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. 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 (Pages 17-21).

The report's findings that nursing home operators failed to comply with the state's infection control protocols are consistent with DOH's own investigation. The report found that operators failed to properly isolate COVID-positive residents; failed to adequately screen or test employees; forced sick staff to continue working and caring for residents; failed to train employees in infection control protocols; and failed to obtain, fit and train caregivers with PPE. These failures are in direct violation of Public Health Law and DOH guidance that every nursing home operator was aware of. Violations of these protocols is inexcusable and operators will be held accountable. In fact, DOH has already issued 140 infection control citations and more than a dozen immediate jeopardy citations.

The report also found operators in direct violation of the executive order requiring nursing homes to communicate with family members in real time when there was a COVID-19 infection or death in the facility (Page 36).

Additionally, it identifies examples in which nursing home operators reported different information to DOH then to the OAG. To the extent the OAG has identified situations in which nursing home operators submitted false information to the state, the OAG should communicate those discrepancies to DOH so that we can pursue enforcement actions for violations of the Public Health Law (Page 11). Nursing home operators must report accurate information to DOH or face civil or criminal penalties, and to date DOH has already fined numerous facilities for violating that obligation.

The attorney general's report also affirms that the state's actions to mandate increased testing of nursing home patients and staff, dramatically ramp up testing capacity, provide DOH staff to facilitate testing, and help backfill staffing shortages with the state's staffing portal directly contributed to a reduction in transmission rates within facilities (Page 35).

It also affirmed that the State Department of Health's March 25 advisory memo was consistent with federal CMS and CDC guidance, and in fact was helpful in communities where hospitals had bed shortages during the initial surge. Additionally, the OAG report found no evidence that any nursing home lacked the ability to care for patients admitted from hospitals (Page 37; Page 72, footnote 45).

The OAG report also affirmed the fact that DOH's March 25 memo was not a directive that nursing homes accept COVID patients from hospitals even if they couldn't care for them:

“While some commentators have suggested DOH's March 25 guidance was a directive that nursing homes accept COVID-19 patients even if they could not care appropriately for them, such an interpretation would violate statutes and regulations that place obligations on nursing homes to care for residents. For example, New York law requires a nursing home to ‘accept and retain only those residents for whom it can provide adequate care.’ See 10 NYCRR § 415.26(i)(1)(ii). Preliminary findings show a number of nursing homes implemented the March 25 guidance with understanding of this fundamental assessment” (Page 72, footnote 45).

The OAG report also found no evidence that DOH's March 25 advisory memo resulted in additional fatalities in nursing homes. In fact, a DOH report, which the OAG cites in its own review, found that 98% of nursing homes already had COVID in their facilities prior to a patient being admitted there from a hospital (Page 34 of the DOH report). To quote:

“The previously reported statewide nursing home survey conducted by NYSDOH on admission data from March 25, 2020 - May 8, 2020 showed that approximately 6,326 COVID-19 patients were admitted from a hospital to a total of 310 unique nursing homes. The updated data now shows that of the 310 nursing homes that took in the 6,326 patients, 304 – or 98% – already had COVID present in the facility prior to admission of a single COVID positive patient from a hospital. In all 304 nursing homes there was at least one suspected or confirmed COVID-positive resident, COVID-related confirmed or presumed fatality, or a worker infected prior to admission of a single COVID-positive hospital patient. Therefore, in these cases, the patient admitted from the hospital did not introduce COVID-19 into the nursing home.”

DOH has consistently found numerous inaccuracies when examining unverified data and, as a result, months ago DOH began an audit of fatality numbers reported by nursing homes to ensure public release of these statistics were accurate. This audit found entries where a deceased individual was listed as dying both in a hospital and in a nursing home, duplicate entries, and entries where the individual had no name or listed a date of death in a facility before they had been admitted, and other issues that suggested inaccurate data inputs. Over the past months, DOH contacted numerous individual facilities to resolve these discrepancies.

DOH has stated on numerous occasions that data will be released once this audit has been completed. Although the audit remains ongoing, DOH data audited to date shows that, from March 1, 2020, to Jan. 19, 2021, 9,786 confirmed fatalities have been associated with skilled nursing facility residents, including 5,957 fatalities within nursing facilities, and 3,829 within a hospital. This represents 28% of New York's 34,742 confirmed fatalities – below the national average. 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. When 2,957 presumed COVID nursing home fatalities – those fatalities that occurred when testing was scarce and lack confirmed evidence the deceased had COVID – are included, the state's share of fatalities of individuals that died in nursing homes or in hospitals after transfer is 29.8% of the total number of confirmed and presumed deaths in New York state listed by CDC. For context, states with many fewer total deaths had a similar number of nursing home related deaths, including: Pennsylvania with 10,287 nursing home deaths (49% of their total deaths); Florida with 9,273 nursing home deaths (35% of their total deaths); Massachusetts with 7,944 nursing home deaths (56% of their total deaths); and New Jersey with 7,733 nursing home deaths (36% of their total deaths).

It is worth noting that there remain 13 states that report no information on nursing home fatalities and only nine states, including New York, report nursing home fatalities that are “presumed” COVID and not confirmed COVID. Notwithstanding all of this, the confirmed number of New York state deaths remains unchanged (34,742), and New York's public COVID dashboard continues to clearly specify that "this data captures COVID-19 confirmed and COVID-19 presumed deaths within nursing homes and adult care facilities. This data does not reflect COVID-19 confirmed or COVID-19 presumed positive deaths that occurred outside of the 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. 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. There is no satisfaction in pointing out inaccuracies; every death to this terrible disease is tragic, and New York was hit hardest and earliest of any state as a direct result of the federal government's negligence. There is still an ongoing crisis that is being actively managed and investigated and we will review the remainder of the recommendations as we continue to fight with every resource and asset to protect all New Yorkers from the scourge of COVID.

All of this confirms that many nursing home operators made grave mistakes and were not adequately prepared for this pandemic, and that reforms are needed, which is why we proposed radical reforms to oversight of nursing home facilities in this year's state budget. We will do everything in our power to enact those reforms this year. This is still an ongoing crisis and we will continue deploying every resource possible to ensuring the health and safety of every single New Yorker.

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