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Nursing homes in NY had big problems before COVID pandemic. Why AG report may spark change

David Robinson
New York State Team

The COVID-19 pandemic laid bare fundamental flaws in the oversight, regulation and operation of nursing homes in New York, according to a state Attorney General’s Office investigation.

From nursing home owners potentially putting profits over resident safety to poorly trained workers stretched to the breaking point due to understaffing, the failure to protect frail and elderly New Yorkers most vulnerable to the coronavirus stemmed from systemic problems within the long-term care industry, the investigation asserted.

“New York needs to ensure that nursing homes take care of our seniors and our most vulnerable residents with dignity, respect and the sufficient care that the law requires — and that the public primarily funds,” investigators wrote in the bombshell report released Thursday.

FILE- In this April 17, 2020, file photo, a patient is wheeled into Cobble Hill Health Center by emergency medical workers in the Brooklyn borough of New York. A grim blame game with partisan overtones is breaking out over COVID-19 deaths among nursing home residents, a tiny slice of the population that represents a shockingly high proportion of Americans who have perished in the pandemic.

And while politically charged debate over the report focused on state officials’ prior refusal to disclose the true nursing home death toll, which was revealed to be nearly 13,000 as opposed to the 8,700 previously reported, advocates and lawmakers have seized on the investigation’s call for reforming the industry.

“This shocking yet unsurprising report must serve as a wake-up call that vulnerable residents and their families deserve better,” said Richard Mollot, executive director of the Long Term Care Community Coalition.

“Many of the failures documented in this report have been going on for years and have only been exacerbated by the COVID-19 pandemic.” 

The 76-page report provides insights into its potential ramifications for ongoing attempts to overhaul the nursing home industry.

More:COVID deaths at NY nursing homes undercounted by 50%. AG probe slams pandemic secrecy, failures

How nursing home staff shortages fueled COVID-19 crisis

A new report by New York State Attorney General Letitia James's office charges that COVID-19 deaths of nursing home residents in New York have been undercounted by about 50% as poor infection-control practices and understaffing fueled the coronavirus crisis inside the long-term care facilities.

Investigators described how some nursing homes’ pre-pandemic low staffing model “simply snapped under the stress of the pandemic.”

While the report did not name specific nursing homes due to ongoing investigations, it revealed key factors that allowed the coronavirus to overwhelm facilities statewide, though much of the probe focused on downstate communities hit hardest during the initial wave of infections in the spring and summer.

Among the examples:

  • A facility where the leadership was out ill or working remotely, leaving onsite management of the entire facility in the hands of just two nurse supervisors. Several weeks later, residents started dying from COVID-19, including 33 residents in one week, or 15% of all the patients in the facility.
  • One employee alleged staff shortage prompted certified nursing aides, rather than nurses licensed to do so, were dispensing medications.
  • A nursing supervisor alleged in mid-April that she had been working for 21 days straight, 14 hours per day, and described a facility stretched to the absolute limit to care for its residents.

Investigators noted the staffing failures “occurred at the same time that necessary visitation restrictions removed the supplemental caregiving provided pre-pandemic by many family visitors at low staff facilities.”

Further, some nursing homes pressured, knowingly permitted, or incentivized existing employees who were ill or met quarantine criteria to report to work and even work multiple consecutive shifts, in violation of infection control protocols, the report said.

The investigation also drew connections between poor staff ratings before the pandemic and higher rates of deaths.

Of the state’s 401 for-profit facilities, over two-thirds – a total of 280 – entered the COVID-19 pandemic with the lowest 1-Star or 2-Star staffing ratings by the Centers for Medicaid and Medicaid Services, investigators found.

As of Nov. 16, 3,487 COVID-19 resident deaths (over half of all deaths) occurred in the 280 low-rated facilities, the report noted.

“There were too many instances of employees being pressured to work while contagious to ensure higher staffing levels. This put all residents and employees of the nursing home at risk,” the report added.

The report also recommended a series of steps to improve regulation and oversight of nursing homes, and called for imposing mandated staffing ratios, citing various nurse and other staff minimums required in other states such as California, New Jersey and Ohio.

More:Investigation: 62 NY nursing homes failed at infection control amid COVID-19. What happened.

More: Cuomo on nursing home deaths after critical AG report: 'Everyone did the best they could'

How legal immunity provisions impacted NY nursing homes

FILE - In this April 20, 2020, file photo emergency medical technicians transport a patient from a nursing home to an emergency room bed at St. Joseph's Hospital in Yonkers, N.Y. A grim blame game with partisan overtones is breaking out over COVID-19 deaths among nursing home residents, a tiny slice of the population that represents a shockingly high proportion of Americans who have perished in the pandemic.

The investigation also raised questions about the potential far-reaching impacts of limited immunity provisions for health care providers relating to COVID-19, citing a law approved in March and amended slightly in July to narrow the scope of immunity.

“The intent was to support health care professionals making impossible health care decisions in good faith during this unprecedented crisis,” the report states, referring to the law.

But investigators found examples that “illustrate instances of facility decisions that relate to or affect resident care that are financially motivated, rather than clinically motivated,” the report added, noting investigations are ongoing related to those cases.

Much of the issue involved nursing home owners who potentially pressured staff to admit more residents to avoid losing money, despite staff shortages that left the facility incapable of providing adequate care.

In other words, investigators are digging into cases of nursing homes that may have put profits above resident and staff safety.

The report called on lawmakers and regulators to improve transparency and oversight of for-profit nursing home operators, citing the potential that resident admission decisions were made to improperly, and potentially illegally, sustain reimbursements from Medicaid, Medicare and other health insurance.

More:What COVID-19 liability protections for nursing homes, hospitals in NY will be changed

More:Want to sue a hospital or nursing home over COVID-19? New York limits liability

How New York nursing homes failed at infection control

In this April 17, 2020, file photo, a patient is loaded into an ambulance by emergency medical workers outside Cobble Hill Health Center in the Brooklyn borough of New York. The nursing home with multiple deaths from the coronavirus has become another glaring example of the struggle to control such outbreaks amid shortages of staff, protective equipment and testing.

Accounts of violations of infection-control and prevention practices are peppered throughout the Attorney General’s report.

Some of the findings included:

  • Numerous nursing homes that failed to isolate residents infected with COVID-19, which may have allowed the virus to spread in communal dining rooms and living spaces for months.
  • Nursing homes that reportedly did not properly screen staff members before allowing them to enter the facility to work with residents.
  • Some staff allegedly avoided having their temperatures taken and answering a COVID-19 questionnaire when one facility’s front entrance screening station had no employees, or when staff entered the facility through a back entrance, avoiding the screening station altogether.

One nurse alleged a supervisor put out bins of masks and gowns just before a safety inspection in an apparent attempt to misrepresent the facility’s personal protective equipment supply.

Inspectors later caught the facility violating rules, including the most severe “immediate jeopardy.”

More: COVID-19: Lawmakers slam DOH's Zucker for incomplete nursing home death data, liability and visitation policies

What nursing home trade group says

Gov. Andrew Cuomo delivers his daily press briefing on coronavirus alongside Health Commissioner Howard Zucker on April 30, 2020, at the state Capitol in Albany.

Stephen Hanse, president and CEO of the Health Facilities Association in New York, noted the report underscored how state officials gave priority to hospitals over nursing homes when it came to addressing problems with everything from staffing and personal protective equipment shortages to financial challenges.

“The fundamental issue underlying the findings of the Attorney General’s report is that policy makers uniformly failed to treat nursing homes equally as hospitals throughout the pandemic,” he said.

Hanse, however, disputed the report’s assertions that for-profit nursing homes, in general, put residents at higher risk than nonprofit or government-run facilities.

“To state that there was financial motives there’s not substance to that allegation in the report, and it will be interesting over time to see how that plays out,” he said.

More:How many COVID vaccine doses in nursing homes, assisted living? What we know (and don't)

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David Robinson is the state health care reporter for the USA TODAY Network New York. He can be reached atdrobinson@gannett.com and followed on Twitter:@DrobinsonLoHud