A new report from New York Attorney General Letitia James on COVID-19 deaths in nursing homes has community members and organizations statewide calling for answers and looking for solutions.
Thursday’s report — a sprawling, in-depth 76-page document — details an investigation led by James’ office into nursing homes’ responses to the pandemic. James has been investigating nursing homes throughout the state since March 2020 based on allegations of patient neglect and other conduct that may have jeopardized the health and safety of residents and employees.
Among other things, James’ office found that a much larger number of nursing home residents died from COVID-19 than the state Department of Health’s published data reflected. Those deaths may have been undercounted by as much as 50 percent, the report shows.
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 will conduct ongoing investigations into more than 20 nursing homes whose reported conduct during the first wave of the pandemic presented particular concern.
The report did not name any specific nursing homes, so it is unclear whether any Rochester-area homes were involved in the investigation.
“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 home 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.”
On April 23, the Office of the Attorney General set up a hotline to receive complaints relating to communications by nursing homes with family members prohibited from in-person visits and formally initiated a large-scale investigation of nursing homes’ responses to the pandemic. OAG received more than 770 complaints on the hotline through August 3, and an additional 179 complaints through November 16. OAG also continued to receive allegations of COVID-19-related neglect of residents through pre-existing reporting systems.
The investigations found that:
• A larger number of nursing home residents died from COVID-19 than the Department of Health 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.
New York state has some 619 nursing homes, with 401 of those facilities listed as for-profit, privately owned and operated entities. Of the state’s 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 — more than 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, James noted.
Sen. Samra Brouk, D-Rochester, a member of the Senate Committee on Health, on Thursday said that she will co-sponsor S1168, the “Safe Staffing For Quality Care Act” to address inadequate staffing levels in nursing homes and acute care facilities.
“Today’s report on COVID-related nursing home deaths from the attorney general confirms what we already suspected — inadequate staffing levels, poor compliance with infection control protocols and a lack of transparency are serious problems that need to be addressed,” Brouk said. “Now that we have this information we must act quickly to enact the recommendations laid out by the attorney general and prevent future harm to nursing home residents and workers. This legislation is a step in the right direction to make sure we learn from our mistakes.”
The bill would require acute care facilities and nursing homes to implement nurse-to-patient ratios in all nursing units. It would set minimum staffing requirements such as requiring every such facility to submit a documented staffing plan to the state, and require facilities to maintain staffing records during all shifts.
“I want to thank Attorney General Tish James for her leadership on this important and timely issue. This report is hard to read. Every statistic is a human being, and part of a family and our community. The COVID-19 pandemic has taken a heartbreaking toll that we must never forget,” said state Assemblywoman Sarah Clark, D-Irondequoit. “While this report brings some clarity to the situation facing our nursing home residents, families and employees, it truly exposes how much work we have ahead of us to protect our most vulnerable populations and give them the quality of life they deserve. Now is the time for legislative action that will increase transparency with DOH numbers and improve oversight of the nursing home industry as a whole. We need to invest more resources into workforce development and the Ombudsman program, which is often the lifeline protecting residents in long term care facilities. Lastly, we must make sure the vaccine is immediately made available to every resident and staff member.”
The New York State Nurses Association said the report confirmed what we already knew: that many long-term care facilities lacked adequate PPE, basic infection control procedures, safe staffing and quarantine protocols to mitigate the spread of the virus.
“A key finding of the report is that poor staffing increased mortality rates, adding to the large body of evidence that shows safe staffing saves lives,” the association said in a statement Thursday. “The majority of long-term care facilities are privately-owned, for-profit corporations. These facilities had a financial incentive to understaff before the pandemic. And during the pandemic, chronic understaffing, mixed with cutting corners on health and safety, had deadly results. The report clearly underscores why relying on for-profit companies for safety-net healthcare is a tragic mistake.”
The Long Term Care Community Coalition also noted that the report’s findings reinforce the need for minimum staffing standards, increased financial accountability and meaningful regulatory oversight to ensure the quality of care, quality of life and dignity for long-term care residents in New York.
“This shocking yet unsurprising report must serve as a wake-up call that vulnerable residents and their families deserve better,” said Richard Mollot, LTCCC’s executive director. “Many of the failures documented in this report have been going on for years and have only been exacerbated by the COVID-19 pandemic. It demonstrates that the long-standing system of accepting and paying for substandard nursing home care has been harmful for residents, their families and the public at large. We thank Attorney General James for undertaking this important work and shedding light on the catastrophic impacts of both COVID-19 and inadequate quality assurance on nursing home residents.”
Assemblyman Brian Manktelow, R-Lyons, is calling on the state Legislature to strip Gov. Andrew Cuomo of his “emergency powers,” as a result of the report.
“It is downright despicable for the governor to have allowed for the underreporting of the deaths due to COVID-19 in nursing homes,” Manktelow said in a statement Thursday. “These are people’s family, friends and loved ones, they deserve to know what has really been going on. He has also allowed nursing homes to continue to skirt infection control protocols. Given that the elderly are one of the most vulnerable portions of our population, this is completely unacceptable and must be addressed immediately, especially as COVID-19 numbers are back on the rise. We do not need a repeat of what happened last year.
“You can’t fix a mistake by making another. It was a mistake by the governor directing nursing homes to take COVID-19 positive patients, and it would be a mistake for him to retain his emergency powers. We need to return power to the Legislature,” Manktelow added.
The report makes a number of recommendations, including:
• Ensure public reporting by each nursing home as to the number of COVID-19 deaths of residents occurring at the facility — and those that occur during or after hospitalization of the residents — in a manner that avoids creating a double-counting of resident deaths at hospitals in reported state COVID-19 death statistics;
• Enforce, without exception, New York state law requiring nursing homes to provide adequate care and treatment of nursing home residents during times of emergency;
• Require nursing homes to comply with labor practices that prevent nursing homes from pressuring employees to work while they have COVID-19 infection or symptoms, while ensuring nursing homes obtain and provide adequate staffing levels to care for residents’ needs;
• Require direct care and supervision staffing levels that: (1) are expressed in ratios of residents to RNs, LPNs and CNAs; (2) require calculation of sufficiency that includes adjustment based on average resident acuity; (3) are above the current level reflected at facilities with low CMS Staffing ratings; and, (4) are sufficient to care for the facility’s residents’ needs reflected in their care plans;
• Support manufacturing of PPE to facilitate sufficient supply of PPE for purchase by nursing homes. Enforce requirements that nursing homes have sufficient inventory of PPE for all staff to be able to follow infection control protocols;
• Ensure that adequate COVID-19 testing is available to nursing home residents and employees and require nursing homes to test residents and staff in accordance with CDC and DOH evidence-based guidelines;
• Formally enact and continue to enforce regulatory requirements that nursing homes communicate with family members of residents promptly, but not later than within 24 hours, of any confirmed or suspected COVID-19 infection, and of any COVID-19 confirmed or suspected death; among other things.
The full report can be found here.
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