NEW YORK STATE (WROC) — New York Attorney General Letitia James released a report on her office’s ongoing investigations into nursing homes’ responses to the COVID-19 pandemic on Thursday. According to the report, the New York State Department of Health (DOH) may have undercounted how many nursing home residents died of COVID-19 by as much as 50%.

According to the report, a larger number of nursing home residents died from COVID-19 than nursing home data that DOH published shows, and that may have been undercounted by as much as 50%. 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 this investigation, Attorney General James is also investigating over 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,” Attorney General 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 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.”

According to the report, the Office of the Attorney General (OAG) found that:

• 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
• 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

“Preliminary data obtained by OAG 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. Preliminary data also reflects apparent underreporting to DOH by some nursing homes of resident deaths occurring in nursing homes. In fact, the OAG found that nursing home resident deaths appear to be undercounted by DOH by approximately 50%.”

According to the attorney general’s office, in one instance, a facility reported five confirmed and six presumed COVID-19 deaths at the facility as of August 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.

The report says the office also received numerous complaints that some nursing homes failed to implement proper infection controls to prevent the spread of the virus.

“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.”

Officials also said several reports were received about nursing homes not properly screening staff.

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, according to the attorney general.

As of November 16, 3,487 COVID-19 resident deaths (over half of all deaths) occurred in these 280 facilities.

“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,” a statement from the Attorney General James reads.

In March of 2020, Gov. Andrew 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.

“In order to ensure no one can evade potential accountability, Attorney General James recommends eliminating these newly enacted immunity provisions,” a statement from the office reads.

Take a look at the full report below: