Empty hospital bed.

New Data Reignites Concerns over COVID-19 and Nursing Homes in New York State

By James W. Lytle 

Concerns over New York State’s response to the COVID-19 pandemic, particularly with respect to its treatment of nursing homes, have recently re-emerged in light of a new report and court ruling related to the matter.

Almost from the outset of the pandemic, the State faced scrutiny as to whether it was accurately reporting deaths of nursing home patients.

After nursing homes complained in April about the lack of PPE and other resources to combat the pandemic, Governor Andrew Cuomo responded that it was not the state’s responsibility, and asked the Department of Health and the Attorney General to launch investigations into nursing homes’ response to the pandemic.

Nine months later, in late January 2021, the report by New York State Attorney General Letitia James of the nursing home investigation was released.

Among the report’s headlines, the Attorney General’s preliminary analysis found that the Department of Health had undercounted deaths of nursing home residents due to COVID-19 by about 50%, largely because of the failure of the State to count the deaths of those residents who were transferred to hospitals immediately prior to their deaths. No other state excluded patients who had been transferred before death to hospitals from their nursing home fatality reports.

In its response to the Attorney General’s report, the Department essentially confirmed that if the deaths of nursing home residents that occurred in hospitals were added to the total, nursing home fatalities would be at least forty percent higher than had been previously reported.

Shortly thereafter, on February 3rd, the Department of Health was dealt another blow. Since August 2020, the Department had refused to comply with a freedom of information request filed by the Empire Center, a public policy think tank in Albany that sought the nursing home fatality data.

On February 3rd, a court ruling was issued in the proceeding relating to the Empire Center’s freedom of information request, which ordered the Department to release the long-sought information within five days. Based on the initial release of data in response to the court decision, the Department now acknowledges that nearly 15,000 New Yorkers who had been residents of nursing homes or other adult care facilities died from COVID-19, either in those facilities or after being transferred to hospitals.

According to the Empire Center, these newly admitted totals would push New York’s nursing home mortality rate from 35th to 13th highest among the fifty states and would make New York’s total COVID-19 nursing home death count the highest in the nation, exceeding California by more than 2,600.

Putting aside the unfortunate confusion over the accuracy of the State’s nursing home death toll, the Attorney General’s report went far beyond merely reigniting that controversy. Among other things, the report found:

  • widespread non-compliance with infection control protocols;
  • an apparent relationship between lower Centers for Medicare & Medicaid Services (CMS) staffing ratings and a higher death rate, leading the Attorney General to recommend enactment of mandated staffing ratios;
  • the unavailability of PPE and testing during the early days of the pandemic put residents and staff at increased risk; and
  • the failure by nursing homes to comply with requirements relating to communication with family members caused unnecessary distress.

Moreover, the report responded to another early policy controversy. A March 25th policy directive precluded nursing homes from denying re-admission or admission of individuals based on a confirmed or suspected diagnosis of COVID-19 — a policy that some feared might exacerbate the risks to nursing home patients. The policy was subsequently rescinded by the Department of Health on May 10th.

Earlier this summer, state officials forcefully rebutted the suggestion that the mandate on COVID-19 admissions had any adverse impact on nursing homes and proudly compared New York’s nursing home death numbers to the experience of other states.

The Attorney General’s report, however, cautiously confirmed that the controversial March 25th admission mandate policy “may have contributed to increased risk of nursing home resident infection, and subsequent fatalities,” noting that, while that policy was in effect, 6,326 hospital patients were admitted to 310 nursing homes and that “the peak single day in reported resident COVID-19 deaths was April 8, with 4,000 reported deaths occurring after that date.”

The Attorney General’s policy findings and recommendations, such as mandated staffing ratios and better training of staff around infection control protocols, may offer some useful lessons for policymakers who are focused on enhancing preparation for the next pandemic. The recommendations mirror recent reports on COVID’s impact on long term care facilities by the Kaiser Family Foundation and by Manatt Health (with which I am affiliated, though I had no involvement with this report) for the State of New Jersey. But whether states will ramp up nursing home oversight and invest additional resources to ensure protections for nursing home residents remains to be seen.

James W. Lytle

James W. Lytle

Jim Lytle is Senior Counsel in the Albany and Boston offices of Manatt, Phelps & Phillips LLP, a national law and consulting firm. He is also currently a Senior Fellow with the Advanced Leadership Initiative at Harvard University and an adjunct professor at New York University Law School. He has provided health law and governmental relations representation to a broad array of clients in the fields of healthcare and human services, education and cultural affairs, insurance, biomedical research, and economic development. He has been recognized by Chambers USA as a Leading Lawyer since 2011 and was included in Best Lawyers in America since 2013, where he was named Best Lawyer of the Year in Albany for Health Law in 2017 and for Government Relations Law in 2017 and 2020. He served as Assistant Counsel for Health and Human Services for Governor Mario M. Cuomo, was the founding director of the Volunteer Legal Services Project in Rochester, NY and began his legal career as an Assistant District Attorney in Manhattan. He graduated from Princeton University in 1974 and received his JD from Harvard Law School in 1978, where he was the Director of the Harvard Legislative Research Bureau. He is a former Chair of the Health Law Section of the New York State Bar Association, the co-President of the Hermann Biggs Society and is a board member of the Schuyler Center for Analysis and Advocacy and of DonateLife New York.

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