New York State Department of Health undercounted Covid-19 deaths in nursing homes, attorney general's report says

An ambulance pulls up outside the Cobble Hill Health Center on April 18, 2020, in Brooklyn, New York.

(CNN)The New York State Department of Health undercounted Covid-19 deaths among nursing home residents by approximately 50%, according to a report released Thursday by the state attorney general's office.

The report preliminarily concludes that deaths were underreported based on a survey of 62 nursing homes, a roughly 10% sample of total facilities across the state.
"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," a statement from Attorney General Letitia James' Office said.
      "Preliminary data also reflects apparent underreporting to DOH by some nursing homes of resident deaths occurring in nursing homes," the statement said.
        In a statement, New York State Health Commissioner Dr. Howard Zucker denied there was an undercount.
          The department "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," Zucker said.
          The health department has counted 12,743 confirmed and presumed-positive Covid-19 deaths among nursing home residents since the beginning of the pandemic through January 19, according to Zucker's statement.
          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 -- a category not previously reported publicly by the state.
          Nursing home residents account for 29.8% of total confirmed and presumed Covid-19 deaths in New York state since the start of the pandemic, the release said.
          "The word 'undercount' implies there are more total fatalities than have been reported; this is factually wrong," Zucker said.
          "DOH has consistently made clear that our numbers are reported based on the place of death," Zucker said. "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."
          The attorney general's report, which did not name the nursing homes surveyed, detailed one facility where deaths were underreported to the Department of Health by as many as 29 deaths.
          "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 said.
          James' office continues to investigate the discrepancies, according to the report.
          "OAG is investigating those circumstances where the discrepancies cannot reasonably be accounted for by error or the difference in the question posed," the report said.
          The state's handling of nursing homes and their residents amid the pandemic has been a subject of scrutiny, particularly after a March 25 order by the Department of Health mandated nursing homes must not deny readmission to residents "based on a confirmed or suspected diagnosis of COVID-19."
          Gov. Andrew Cuomo announced a new policy on May 10, saying a hospital cannot discharge a patient to a nursing home unless they test negative for the virus.

          Advisory may have increased risk of harm, report says

          The March 25 directive may have increased the risk of harm from Covid-19 in nursing homes, according to the report.
          "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," the report said.
          More than 6,300 hospital patients were admitted to 310 nursing homes across the state during the roughly 6-week period the executive order was in effect, according to the report.
          The report acknowledges that the policy, which was allowed at the time under guidance from the Centers for Disease Control and Prevention, would have been helpful in areas where hospitals had capacity issues. The report also notes more analysis is needed to understand the full effects.
          Still, preliminary analysis shows some nursing homes that had no previously reported positive Covid-19 patients didn't have Covid-19 deaths until after the policy went into effect, according to the report.
          "(U)sing the DOH publicized data, 4,000 nursing home deaths occurred after the issuance of the March 25 guidance, including some in 323 facilities that apparently had no reported COVID-19 infections before receiving admissions or re-admissions of hospital residents who had been diagnosed with COVID-19," the report said.
          The DOH has continually stated that nursing homes were not forced to take Covid-19 patients from hospitals that they could not care for adequately.
          "The OAG report also affirmed the fact that DOH's March 25 memo was not a directive that nursing homes accept COVID patients from hospitals even if they couldn't care for them," Dr. Zucker said in his statement.
          Some nursing homes put residents' lives more at risk with poor execution of infection control protocols, according to the report.
          Complaints called into the OAG hotline and investigated by the office, according to the report, found violations like nursing homes not separating residents with the virus from the general population and not testing residents enough. The attorney general's office also found instances of PPE shortages, poor screening of staff and employees being forced to work when they were sick.
          "The OAG is conducting ongoing investigations into more than 20 nursing homes across the state whose reported conduct during the first wave of the pandemic presented particular concern," the report said.

          Report 'underscores need for transparency,' state lawmaker says

          State lawmakers have called for a full dataset from the Department of Health since the summer.
          The Senate Investigations and Government Operations Committee demanded Commissioner Zucker turn over a full picture of the death count in August during a legislative hearing on Covid-19 in long-term care facilities and hospitals.
          In response to the attorney generals' report, committee leader Senator James Skoufis, a Democrat, called the continued lack of compliance "insulting and unacceptable" -- hinting that a subpoena is not out of the question.
            The report "further underscores the need for transparency and accountability within the Department of Health," Skoufis said in a statement to CNN, adding that the commissioner's "unresponsiveness to the Legislature's many questions and concerns is insulting and unacceptable."
            "While his next appearance before the Legislature was delayed until late February, it is my full expectation that he provides answers by the time of his testimony, otherwise he can anticipate an unpleasant and uncomfortable hearing. Without answers by then, I will support a move to compel the information from DOH," Skoufis said.