ALBANY — The state Department of Health published almost half the total number of New York’s total COVID-19 deaths in nursing homes, according to a report from the state attorney general’s office released Thursday morning, which the department confirmed later that afternoon after releasing the number of presumed long-term care coronavirus fatalities for the first time.

According to state Health Department Commissioner Dr. Howard Zucker, department data audited to date shows 12,743 total skilled nursing facility resident fatalities, including 9,786 confirmed deaths from COVID-19 complications — 5,957 fatalities within nursing facilities and 3,829 in hospitals — and 2,957 presumed virus nursing home fatalities from March 1, 2020 to Jan. 19, 2021.

The state Health Department reported 8,951 nursing home fatalities on its website as of Thursday morning. The 12,743 confirmed and presumed deaths reflect a 42.36% increase in the state’s total COVID-19 deaths in nursing homes.

Presumed COVID fatalities occurred mainly toward the beginning of the pandemic when testing was scarce and medical personnel did not have confirmed evidence the deceased was infected with the virus.

Attorney General Letitia James has investigated allegations of coronavirus-related neglect of nursing home residents since last March when the pandemic began, according to a statement from her office Thursday morning.

The state Health Department reports 8,951 nursing home residents died due to COVID-19 complications as of Wednesday. The department reported 6,645 COVID-19 deaths in nursing homes as of Nov. 16, with 6,420 of long-term care virus fatalities before Aug. 3.

James initiated a large investigation of the pandemic response within the state’s 613 nursing home and adult care facilities following the large number of complaints. The AG asked 62 of the nursing homes for information about COVID-19 deaths of on-site residents, or residents taken to hospitals, from the week of March 1 through when each facility responded to her request.

The 62 facilities reported 1,914 total COVID-19 deaths to the attorney general’s office, including residents who died from virus complications off-site in a hospital, compared to 1,229 deaths published by the Health Department.

The discrepancy of 685 additional deaths reported to the attorney general shows the Health Department underreported the fatalities by about 55%, according to a statement from James’s office Thursday.

Senate Minority Leader Rob Ortt, R-North Tonawanda, called for Health Department Commissioner Dr. Howard Zucker to resign over the attorney general’s findings.

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

“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,” he added. “For months, Gov. [Andrew] 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.”

Data in the attorney general’s report does not include numbers to date, and reflects data available through early August, with others reporting numbers through mid-November.

The attorney general’s office declined to name the 62 facilities, their location, county or how they were selected. The state has 62 counties.

“We are not releasing the names of any facilities and we do not have total death numbers for various regions,” according to a statement from the attorney general’s office Thursday.

One facility reported five confirmed and six presumed COVID-19 deaths as of Aug. 3 to DOH. However, the facility reported a total of 27 COVID-19 deaths at the facility and 13 hospital deaths to the attorney general – a discrepancy of 29 deaths, according to the report.

“Applying the data that these 62 nursing homes reported to OAG, which includes resident deaths occurring in the facility and in the hospital after transfer, shows a significantly higher number of resident COVID-19 deaths can be identified than is reflected in the deaths publicized by DOH,” according to the report.

Many residents died from COVID-19 in hospitals after being transferred from their nursing homes, which is not reflected in the DOH’s published total nursing home death count.

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, according to the report.

James’s findings are in reference to a controversial March 25, 2020, Health Department memo, which mandated long-term care facilities and nursing homes cannot discriminate against residents by not readmitting people who test positive for the novel coronavirus.

Many have said infected nursing home patients brought the virus with them when they returned to the facility, or home, to recover.

More than 20 nursing homes remain under investigation by the AG’s office.

“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. “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.”

Representatives would not say if there would be subsequent reports, citing an ongoing investigation.

The Attorney General’s Office declined to share the names of the more than 20 nursing homes under investigation, citing the ongoing investigation. The office also would not confirm if any facilities in the group of 20 are located in the North Country, Capital or Finger Lakes regions.

The attorney general’s report on the state’s numbers discrepancy refers to the count of nursing home residents who were transferred to hospitals and later died from COVID-19, according to a statement from Zucker on Thursday afternoon.

“The Office of the Attorney General suggests all should be counted as nursing home deaths and not hospital deaths even though they died in hospitals,” Zucker said. “...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.”

The report contains a footnote on page 71, Zucker added, that the Health Department was always clear and the data on its website pertains to in-facility fatalities.

“The word ‘undercount’ implies there are more total fatalities than have been reported; this is factually wrong,” Zucker said. “In fact, the OAG report itself repudiates the suggestion that there was any ‘undercount’ of the total death number.”

Representatives from Gov. Andrew Cuomo’s Office referred all questions to Zucker’s response.

Cuomo has argued the March 25 directive was in compliance with federal U.S. Centers for Disease Control and Prevention guidance at the time.

The governor has brushed off questions about the state’s number and handling of nursing home deaths several times when pressed on the issue in the past, saying the argument is purely political.

Lawmakers on both sides of the political aisle questioned Zucker during a bicameral hearing Aug. 3 about how many coronavirus-positive nursing home patients were transferred to and died in New York hospitals.

Zucker did not answer questions or provided vague responses to questions, citing frequently changing numbers as the pandemic continues.

Recent changes to state law providing limited immunity provisions for health care providers relating to COVID-19 make the attorney general’s next actions unclear, according to James’ office.

Cuomo created the provisions March 23 with the Emergency Disaster Treatment Protection Act, which provides immunity to health care professionals from potential liability arising from certain decisions, actions or omissions related to care during the COVID-19 pandemic, according to the Attorney General’s Office.

“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,” according to a statement from the Attorney General’s Office. “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 recommends the new immunity provisions are eliminated to ensure every person can be held accountable.

Nursing home deaths due to COVID-19 were reported in 40 of the state’s 62 counties as of Aug. 3, including Albany, Bronx, Broome, Chenango, Columbia, Dutchess, Erie, Fulton, Greene, Herkimer, Kings, Livingston, Madison, Monroe, Montgomery, Nassau, New York, Niagara, Oneida, Onondaga, Ontario, Orange, Orleans, Putnam, Queens, Rensselaer, Richmond, Rockland, Schenectady, Steuben, Suffolk, Sullivan, Tioga, Ulster, Warren, Washington, Wayne, Westchester, Wyoming and Yates.

The state has reported 29 confirmed and three suspected COVID-19 deaths in Greene County nursing homes.

Greene County officials had concerns about the spread of COVID-19 in state nursing homes since the pandemic began last spring, said Legislature Chairman Patrick Linger, R-New Baltimore.

“We have had concerns from the beginning, especially early on in when the order came from state Heath Department of putting positive COVID patients into nursing homes,” Linger said. “I do understand the theory behind the order was to open up hospital beds, that was a big concern.”

The county also raised issues about how nursing home residents who died from the virus in hospitals would be reported, Linger said.

“It doesn’t surprise me if there are more [deaths] than reported,” he added. “Fifty percent seems high, but the number is what it is.”

A total of 29 nursing home deaths have been reported in Greene County, with three suspected COVID deaths, according to the state Department of Health.

While the county receives the death certificates, the nursing homes themselves are responsible for reporting to the state, Linger said.

Getting PPE and test kits was an issue early on, Linger said.

“It seemed they were doing everything they could do with what they had.” Linger said. “We did provide them with PPE. The state provided them with a bunch of test kits and we did the tests for them. It was a concern and a problem.”

Greene County deployed its first batch of test kits from the state to The Pines at Catskill Center for Nursing and Rehabilitation during an outbreak at the facility in April.

Greene Meadows Nursing and Rehabilitation Center had a surge of its own in recent weeks, racking up 60 to 70 cases, Linger said.

Greene Meadows has reported 18 deaths to the state. The Pines has reported 11 deaths and three presumed COVID deaths.

Linger was unaware of local facilities experiencing staffing shortages.

“They’re private facilities so we wouldn’t necessarily know that,” he said. “We’re different from some of the other counties because we don’t own a nursing home. We’re not specifically involved unless they need help from the health department.”

The Health Department reports 33 virus deaths in Columbia County adult-care facilities to date.

Nursing homes are required to report all COVID-19 deaths to the state Health Department under perjury of law.

The state does not report the information to the county department, Columbia County Department of Health Director Jack Mabb said. The department uses their own means to keep track of nursing home COVID-19 deaths, but without a formal mechanism, it is not foolproof.

“I think we do fairly well,” Mabb said of the department’s nursing home death tracking. “We’re not completely 100% in terms of catching all of these deaths and I think some nursing homes would prefer that the death not be reported as a nursing home death and some I think are a little more honest about it.”

The department learns of nursing home deaths through regular communication with Columbia Memorial Health and by looking at positive test results that took place at nursing homes, Mabb said. Larger counties may not have as close contact between the hospital and health departments.

Because no system exists for nursing homes to report deaths to the county, it is difficult for the department to track deaths that took place in the homes, Mabb said.

“I think that we’ve been OK when it comes to finding out the truth in those cases,” he added. “I also think that our numbers are under-reported because some of those folks slip through the cracks for us and they are not reported as a nursing home death.”

Mabb believes nursing home deaths and COVID-19 infections should be reported to local health departments, he said. Some deaths are reported as other conditions that were part of COVID-19 health complications, such as a heart attack.

The county department reports issues with nursing homes to the state and does not receive a report back as to how it was investigated, Mabb said. The county does not have regulatory authority over nursing home.

“We have a couple nurses that are very sensitive and fierce about this subject who don’t want any nursing home death to go unreported and not attributed to that nursing home, so they work really hard at that but the state health department doesn’t make it easy in that respect,” Mabb said.

Assemblyman Jake Ashby, R-107, who represents the northern and eastern parts of Columbia County, is a member of the Aging and Health Committee.

“The governor’s efforts to hide the depth of lives lost due to COVID-19 in our nursing homes is deeply unsettling,” Ashby said in a statement Thursday. “Knowing the governor and DOH withheld important information from the public calls into question so many other aspects of the pandemic response. It is time for the state Legislature to end the governor’s emergency powers and step in to provide greatly-needed oversight.”

Eleven nursing home residents have died from the virus in Jefferson County to date, one reported in Lewis and 34 in St. Lawrence facilities, according to the state Health Department.

The department reports 59 COVID fatalities in Genesee County nursing homes as of the latest numbers Wednesday, 17 in Livingston County, 43 in Orleans County and 18 nursing home virus deaths in Wyoming County.

The AG’s office received more than 770 complaints on a hotline for family members having issues receiving communications from nursing home staff while in-person visits were prohibited between April 23 and Aug. 3. An additional 179 complaints were filed through Nov. 16 during the fall virus surge before the holiday season.

Alleged instances of neglect include insufficient personal protective equipment such as gloves, face shields, masks and gowns, as well as insufficient COVID-19 testing for residents and staff. 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, according to the report.

“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,” Zucker said in a statement about the alleged reports of neglect. “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.”

The Health Department has issued 140 infection control citations and more than a dozen immediate jeopardy citations to date, Zucker said, as operators failed to properly isolate COVID-positive residents, 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.

“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 commissioner added. “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.”

Milly Silva, executive vice president of 1199SEIU United Healthcare Workers East — the largest health care union in the nation — said lawmakers must act and prioritize resident care reform in response to the attorney general’s report.

“Attorney General Letitia James’s report affirms what 1199SEIU caregivers in nursing homes have known all along: The underlying poor conditions in too many New York state homes worsened the toll from the COVID-19 pandemic,” Silva said in a statement. “Now is the time for Albany to enact bold reform, as neighboring states have done, to ensure that taxpayer dollars are directed to resident care, not excessive profit, and that there is sufficient staff to meet resident needs.

“The report’s recommendations are right on target and 1199SEIU members will be working hard to see that they are enacted as part of the 2021-22 New York state budget. Our state’s vulnerable nursing home residents and those that care for them deserve no less.”

State Assembly Minority Leader William Barclay issued a statement on the report Thursday afternoon, saying James’s conclusions are “alarming on a number of levels” and said it “triggers even more questions.”

“What took place in New York’s nursing homes and the Cuomo administration’s decision to deliberately mislead the public by underreporting COVID-19 fatalities is unconscionable and demands accountability,” Barclay said in a statement. “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.”

Sen. Jim Tedisco, R-Glenville, and Assemblyman Ron Kim, D-Queens, sponsor legislation S8756/A10857 to establish an independent, bipartisan investigation with subpoena power to examine the handling of COVID-19 in state adult-care facilities and nursing homes.

“The governor must stop the coronavirus cover-up and now release all the data on the nursing home deaths that myself and my colleagues from both sides of the aisle have requested,” Tedisco said in a statement Thursday. “We need to get all the facts so we can provide a measure of closure for the families who lost their loved ones and help prevent this from happening again.”

Assemblyman Angelo Santabarbara, D-Schenectady, has supported the bipartisan measure for months.

“I am equally outraged by the policies that allowed any of this to happen, I, along with several of my colleagues, have repeatedly called for an independent investigation into New York’s nursing home deaths to determine how this crisis was mishandled, as well as to further study the impact that state and facility policies had on this outcome,” Santabarbara said in a statement. “It’s more evident now than ever that this investigation was necessary. This data will be critical in identifying ways we can improve our crisis response and eliminate the policies that contributed to these tragic and preventable deaths.”

Assemblywoman Didi Barrett, D-Hudson, has also voiced support for a third-party, independent investigation into the state’s COVID-19 deaths in nursing homes and a more accurate count.

James encourages anyone with information or concerns about state nursing home conditions to call 833-249-8499 or file a confidential complaint online.

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