Queens lawmaker responds to ‘groundbreaking’
report on COVID-19 deaths in nursing homes
BY CARLOTTA MOHAMED
Assemblyman Ron Kim,
who has been critical of the
state’s handling of nursing
homes during the COVID-
19 pandemic, addressed an
eye-opening report released
Thursday by the state Attorney
General’s Office that revealed
nursing home deaths
may have been undercounted
by as much as 50 percent.
“This groundbreaking report
from the Attorney General’s
office confirms what I
publicized last spring — that
for-profit nursing home executives
criminally neglected
nursing home residents and
staff because they were disincentivized
to act more responsibly,”
Kim said. “The
governor handed out blanket
immunity to corporate executives
which cost lives and
brought undue pain and suffering.
It is a business model
soaked in blood.”
At the height of the pandemic
in March, Gov. Andrew
Cuomo granted 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.
Since March, Attorney General
Letitia 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 NYS
Department of Health’s (DOH)
published nursing home data
reflected. The data also reflects
apparent underreporting
to Department of Health
(DOH) by some nursing homes
of resident deaths in the
facilities.
Preliminary data obtained
by James’ office suggests that
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.
The investigations also
revealed that 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.
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.”
At the direction of Gov. Andrew
TIMESLEDGER | QNS.2 COM | FEB. 5-FEB. 11, 2021
Cuomo, on April 23, the
attorney general’s office 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.
The office received more
than 770 complaints on the
hotline through Aug. 3, and
an additional 179 complaints
through Nov. 16.
The office also continued
to receive allegations of
COVID-19-related neglect of
residents through pre-existing
reporting systems.
Despite the 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.
In order to ensure no one
can evade potential accountability,
James recommends
eliminating these newly enacted
immunity provisions.
Meanwhile, Kim, who presented
a bill last year to create
a temporary bi-partisan commission
with subpoena power
to investigate the matter, is
calling for a full repeal of Article
30-D, so families can seek
retroactive justice.
Kim’s office published a
three-part investigative report
that analyzed patient
outcomes at for-profit nursing
homes and examined their
connection with increased
COVID-19 patient deaths compared
to outcomes at not-forprofit
nursing homes.
The disparity in the data,
according to Kim, demonstrated
a clear pattern of malfeasance
and neglect in the
for-profit sector, prompting
Kim to send his report to the
United States Ambassador to
the United Nations to begin a
human rights investigation.
In a statement, State Health
Commissioner Dr. Howard
Zucker said no one was being
dishonest, rather, nursing
home COVID deaths had
been counted only if a person
actually died in the facility.
“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,”
Zucker said. “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. The word ‘undercount’
implies there are more
total fatalities than have been
reported; this is factually
wrong. DOH has consistently
made clear that its numbers
are reported based on the
place of death.”
Zuckerman said DOH 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.
“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,”
Zuckerman said.
With the caveat that an audit
has not been completed, the
statement said that 3,829 nursing
home residents confirmed
to have had COVID-19 died after
being transported to a hospital,
bringing the total number
of confirmed COVID-19
deaths among nursing home
residents to 9,786. The vulnerable
population accounts for 28
percent of confirmed COVID-
19 deaths in New York since
the pandemic started.
Zucker further noted 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.”
“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,”
Zucker said. “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.”
Reach reporter Carlotta
Mohamed by e-mail at cmohamed@
schnepsmedia.com or
by phone at (718) 260–4526.
Photo via Getty Images
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