In
Nursing Home Response to
COVID-19 Pandemic (Jan. 2021),[1] New York State Attorney General Letitia
James describes her office’s preliminary findings from its ongoing
investigation into the state’s and nursing facilities’ responses to the
coronavirus pandemic. The report is based on (1) information received
through a hotline opened by the Office of the Attorney General (OAG) to receive
reports of violations; (2) OAG’s analysis of data from the Centers for Medicare
& Medicaid Services (CMS) and the Department of Health (DOH) concerning
correlations of COVID-19 and facility ratings; and (3) OAG’s follow-up of
direct and media reports about potential abuse and neglect.[2] The Attorney General also reports
that her office “is conducting ongoing investigations into more than 20 nursing
homes whose reported conduct during the first wave of the pandemic presented
particular concern.”[3]
Despite
media reports focusing on the Attorney General’s finding that the state may
have underreported the death rate of nursing home residents by 50% much of the
76-page report discusses the business model in many for-profit facilities that
focuses on reducing staffing, related party actions, self-dealing, and
facilities “essentially taking profit prior to ensuring care.”[4]
The
report describes prior cases handled by the Attorney General’s office and
ongoing investigation that
reflect that this business model too often also includes
extracting and transferring revenue received by for-profit nursing homes to
related parties in a manner that enriches entities and individuals who have
control over the nursing home, as well as their family members and business
associates, at the expense of resident care and safety. These transfers of
funds from such for-profit nursing homes occur through a variety of complex
contractual relationships and transactions between private parties in order to
enhance profit for owners, investors, landlords, and other private parties with
relationships to the nursing home owners and operators, even though New York
regulations prohibit directly extracting capital from a facility unless certain
criteria are met.[5]
Rejecting
the nursing home industry’s repeated claim that facilities are blameless for
cases and deaths caused by the pandemic,[6] Attorney General James finds that the
majority of resident deaths occurred in facilities with low nurse staffing
levels. Even in New York City and neighboring counties, where the impact
of COVID-19 was harshest at the beginning of the pandemic, facilities with the
highest staffing levels had half the death rate of facilities with few
staff. Attorney General James concludes, “Staffing was more determinative
of death rates than ‘COVID-19 geography.’”[7]
Recommendations
include requiring direct care and supervision staffing levels; requiring “additional
and enforceable transparency in the operation of for-profit nursing homes,”
eliminating immunity provisions, and increasing staff at the Department of
Health.
Appendix
B discusses the Attorney General’s pre-pandemic investigation, findings, and
criminal prosecution of the owner and manager of a New York nursing facility,
Focus Rehabilitation and Nursing Center at Otsego, that illustrates “the too
prevalent ‘low staffing for profit’ model of exploitation through insufficient
staffing, lack of transparency, and financial incentives.”[8]
___________________
[1] Nursing Home Response to COVID-19 Pandemic (ny.gov).
[2] Id. 13.
[3] New York Attorney
General, “Attorney General James Releases Report on Nursing Homes’ Response to
COVID-19” (Press Release, Jan. 28, 2021), Attorney General James Releases Report on Nursing Homes’
Response to COVID-19 | New York State Attorney General (ny.gov).
[4] Nursing Home Response to COVID-19
Pandemic, p. 23.
[5] Id.
[6] In a December 2020
interview with McKnight’s
Long-Term Care News, reported on January 5, 2021, the American
Health Care Association’s Mark Parkinson said, “This pandemic was not the fault
of long-term care and the rapid spread of the virus in long-term care
facilities also wasn’t the fault of long-term care or the buildings. It
has to do with the asymptomatic spread of an incredibly contagious
virus.” Liz Berger, “Parkinson: ‘Bold proposals’ expected for long-term
care transformation,” McKnight’s
Long-Term Care News (Jan. 5, 2021), https://www.mcknights.com/news/parkinson-bold-proposals-expected-for-long-term-care-transformation/.
[7] Nursing Home Response to COVID-19
Pandemic, p. 30.
[8] Id. 63. The facility,
now known as Cooperstown Center for Rehabilitation and Nursing, has an overall
rating of one star (the lowest possible rating) of five stars on the federal
website CareCompare,
as of February 1, 2021. It also has a one-star rating in health inspections
and a two-star rating in staffing.
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