Newsday gets LI nursing home records that highlight conflicting views on enforcement
New York's strategy for treating nursing home patients during the early months of COVID-19 is among the most debated public health issues to emerge from the pandemic.
State Health Department inspection records obtained by Newsday show that few Long Island nursing homes were found deficient or had substantiated complaints against them. The data is a point of conflict between the elder care industry and patient advocates.
During the first months of the pandemic in 2020, state inspectors found that only 16% of Long Island's 79 largely private nursing homes had deficiencies that jeopardized public health and violated public health guidelines, according to the inspection reports.
In addition, less than 3% of all complaints filed against Long Island elder care facilities by family members during that time were substantiated by inspectors.
State Health Department inspection reports from March through August 2020 show that 66 of the 79 area nursing homes — which combined had about 2,000 confirmed or presumed COVID resident fatalities — had no documented infection control problems during the frantic early days of the pandemic, according to the records.
Patient advocates said the data shows that Health Department inspections lack the depth and seriousness to root out issues that could jeopardize public health.
Leaders of the nursing home industry, however, say the few recorded deficiencies prove that elder facilities were doing all they could to keep residents safe in the face of staffing, personal protective equipment shortages and limited access to COVID testing.
Since March 2020, nearly 16,000 residents of New York State nursing homes, assisted living facilities and other adult care locations have died of COVID, either inside the building or at area hospitals.
Confirmed or presumed cases of COVID were linked to the deaths of 1,393 Suffolk County nursing home residents and another 1,026 in Nassau County, Health Department data shows.
Independent experts suggest local health departments were in difficult position during the early days of COVID, providing oversight of an underfinanced nursing home industry caring for a vulnerable population, which typically relies on another vulnerable group of low-income workers to provide most of the care.
"It was a perfect storm," said Edward Miller, a professor at the University of Massachusetts, Boston who studies the effects of federal and state policies on vulnerable populations, including the elderly. "You have extremely vulnerable residents living in a congregate setting being served by people who come in from the community."
The conflicting views of the inspection reports, experts say, also illustrate how little the public — including loved ones with residents living in nursing homes — knew about the facilities’ day-to-day operations once COVID struck and they closed to outside visitors.
Violations but ‘minimal harm’
As the coronavirus spread throughout New York last spring, shutting schools, businesses and the way of life on Long Island and across the state, health inspectors were dispatched to review infection control practices at every state-licensed nursing home, which had quickly become a primary breeding ground for COVID and the source of many deaths.
In June 2020, Newsday filed a Freedom of Information Act request with the Health Department, which oversees the industry, seeking inspection reports of all Long Island nursing homes.
Those records, provided to Newsday nine months later, showed that deficiencies were found in 13 of 63 area nursing homes inspected through the end of June 2020. An additional 16 area nursing homes were inspected in July or August, none of which were found to have violations during that period, according to records.
The violations included a Medford facility that allowed congregate dining — without masks — more than 10 weeks after the state’s first COVID case; a Smithtown facility accused of allowing a COVID-positive resident to share a room with an individual who tested negative for the virus and repeated cases of housekeepers inappropriately wearing personal protective equipment.
Six facilities were cited for failing to notify loved ones within 24 hours that residents had contracted or died of COVID while three others did not report those deaths to a state database, artificially keeping fatality numbers low, the reports show.
None of the nursing homes cited for violations lost their license — although some received fines — with all deficiencies classified as constituting "minimal" or "no actual" harm to residents.
'These are really serious and fundamentally basic issues.'
-Richard Mollot, executive director of Long Term Care Community Coalition
"These are really serious and fundamentally basic issues," said Richard Mollot, executive director of Long Term Care Community Coalition, an advocacy group for nursing home residents. "And this is all basic stuff. You know you have a contagious disease, so you don’t have communal dining. You know you have a contagious disease, you make sure people are using PPE appropriately."
Stephen Hanse, president and chief executive of the New York State Health Facilities Association, which represents the nursing home industry, said elder care facilities deserve credit, not blame, for persevering through unprecedented challenges, including changing state guidelines and major staffing shortages.
'The data clearly shows that, under the circumstances … they did an amazing job.'
Stephen Hanse, president/chief executive of New York State Health Facilities Association
"Given all the obstacles that nursing home providers were faced with, the data clearly shows that, under the circumstances and fighting a virus … that really preys on the most vulnerable population, they did an amazing job," Hanse said.
Nina Kohn, who teaches elder law at Yale Law School and at Syracuse University, said nursing homes failed to invest in staffing levels, even before COVID struck.
"This contributed to the patterns of death and suffering we saw," Kohn said. "And nursing homes over-relied on part-time and agency staff — which not only resulted in lower quality care but greater exposure to COVID-19. Research has shown that part-time staff moving between facilities was a significant driver of COVID-19 infections."
In May, then-Gov. Andrew M. Cuomo signed bills to mandate minimum staffing levels for hospitals and nursing homes to improve care and avoid a repeat of the critical workforce shortages during the pandemic.
Nursing home controversies
In the spring of 2020, Cuomo granted hospitals and nursing homes immunity from lawsuits "related to the diagnosis or treatment of COVID-19." State lawmakers repealed that provision in April 2021.
State Attorney General Letitia James issued a report in January that found the Cuomo administration undercounted deaths of nursing home residents by as much as 50% by not including residents who died in hospitals. A U.S. Department of Justice criminal investigation is underway into the issue.
The Cuomo administration conceded it undercounted deaths of nursing home residents because it feared the Trump administration would use the numbers for political purposes.
In August, Cuomo's successor, Gov. Kathy Hochul, added 12,000 COVID deaths to the state's count, bringing the state's total to nearly 55,400 people. Cuomo's count excluded people who died at home, in hospice, prisons or at state-run homes for people with disabilities.
Cuomo was also criticized for a March 25, 2020, Health Department memo that instructed nursing homes to accept COVID-positive patients after they returned from the hospital.
Hospitals must certify a patient is "medically stable for return" to a nursing home and that the facility is able to provide the patient with "adequate care," the Health Department wrote in a May 2020 memo. Discharging patients must also have at least one negative COVID test before leaving the hospital, the memo stated.
Lawmakers and some family members of those who died in nursing homes contend the guidance exacerbated the spread of COVID. A June report from the State Bar Association found the directive contributed to state’s death toll from COVID.
Cuomo said the policy followed federal guidelines and the virus was likely introduced into the homes by staff and visitors.
Experts note that Long Island’s inspection control numbers were not unusual.
In March 2020, the Centers for Medicare & Medicaid Services, the federal agency that administers Medicare and Medicaid, suspended inspections of nursing homes nationwide, except those related to COVID-related infection controls and public safety threats.
Between March and May 2020, 13% of nearly 6,000 facilities surveyed nationwide were cited as deficient in meeting federal safety requirements, according to a report from the Henry J. Kaiser Family Foundation, a health policy nonprofit.
Miller questions whether the inspection criteria standards, which are set by CMS, are strong enough.
"We may need to strengthen the criteria that is used to assess nursing homes for infection control," he said. "Clearly there is a lot of room for everyone to do better."
Inspections, he added, are one of three measures — the others being staffing and quality of resident care — used by CMS to rate nursing home performance.
‘She was in a rush’
By May 14, 2020, nursing homes were in full lockdown mode in an effort to halt the virus’ spread and state guidance instructed facilities to halt communal dining if there were any confirmed cases of COVID. Medford Multicare Center, a 320-bed privately run facility, reported its first case weeks earlier.
But health inspectors found more than two dozen residents sitting in a dining room without masks. Of the 27 residents observed, 18 were sitting at six small tables — three per table — and less than 6 feet apart, the report shows.
"The registered nurse supervisor for the unit … stated that she had no idea why any of these residents were in the dining room at one time and they should not have been because they were not spaced far enough apart from each other," the inspection report said.
Medford, which was also cited for failing to notify family members of COVID cases or fatalities, was fined $88,000 — the most of any Long Island facility — for violating the communal dining regulation, although the state classified the incident as presenting "minimal harm or potential for actual harm." Medford did not respond to requests for comment.
Health inspectors fined Brookside Multicare Nursing Center in Smithtown $6,000 for allowing a COVID-positive resident to share a room with a COVID-negative resident. Nursing home officials told investigators "there was no other room on the unit to transfer the resident and that both residents were asymptomatic."
Brookside administrator Kevin Cahill said "both residents in question tested COVID-positive and were asymptomatic."
At Garden Care Center in Franklin Square, inspectors found That a housekeeper in full PPE entered the rooms of two COVID-positive residents and then walked into a staff restroom and two COVID-negative rooms without changing her equipment. The housekeeper "stated she was in a rush," the inspection report said.
Garden Care Center, which was also cited for failing to notify a family member diagnosed with COVID, was fined $14,000 and did not respond to requests for comment.
'The numbers reveal that these were not thorough investigations of allegations of abuse and neglect.'
-John Dalli, a Mineola-based elder care attorney
The nursing homes have the ability to challenge the fines but it could not be determined if any had.
John Dalli, a Mineola-based elder care attorney, said "it’s impossible that these numbers are reflective of the actual number of violations of state regulations that occur. The numbers reveal that these were not thorough investigations of allegations of abuse and neglect."
Independent experts said nursing homes are chronically underfunded, leading to cascading problems that likely had an impact on patient care, from inadequate testing of staff and residents to insufficient PPE and underpaid staff often forced to work in multiple facilities.
"And what do you do with facilities that are in violation? Do you shut them down?" asked Michael Gusmano, a professor of health policy at Rutgers University. "If you shut them down where do you send those people? You have an aging population. You have a growing demand."
‘No accountability’
While Cuomo vowed in the spring of 2020 that nursing homes could face $10,000 fines per violation, or potentially see their licenses stripped for failing to follow COVID protocols, no Long Island nursing home lost its license.
Twenty-five — less than one-third of the area facilities inspected by the state — have been fined since the pandemic began, according to the state. The fines combined to total $318,500, with most nursing homes receiving penalties from $2,000 to $8,000.
Several local nursing homes were cited for deficiencies — and some, but not all were issued fines — during follow-up inspections during the second half of 2020 and in the first half of 2021, records show.
'Some of them do look at these fines as the price of doing business.'
Toby Edelman, a senior policy attorney for the nonpartisan Center for Medicare Advocacy
Toby Edelman, a senior policy attorney for the nonpartisan Center for Medicare Advocacy in Washington, said small dollar fines will do little to curb the behavior of the multimillion-dollar for-profit companies operating many nursing homes.
"Some of them do look at these fines as the price of doing business," Edelman said. "That’s definitely a problem."
And while 722 allegations were leveled against Long Island nursing homes during the first four months of the pandemic, 21 complaints — or 3% — were substantiated by Health officials. Records show that 532 findings were not specified, meaning the case remains open, and 169 were unsubstantiated.
The Health Department said every complaint is "thoroughly investigated. The investigations include direct observations, interviews with residents and staff and medical record reviews. We do inform complainants that if we don’t substantiate a complaint it does not mean their allegations were untrue or false but rather that we did not find the evidence to support the claim."
Dalli contends the state lacks the staff to investigate all allegations.
"The true story is the problems are much wider," he said. "We just don’t have a real window into how bad it really was."
Inspections and complaints are among the few avenues available to family members who believe their loved ones were mistreated at nursing homes during the pandemic.
Rapid virus spread
During the earliest days of the pandemic, coronavirus spread rapidly through nursing homes across the United States, exacting a devastating toll on state facilities caring for the most vulnerable residents.
Facing intense public pressure to ensure that health and safety protocols were in place — and with family members prohibited from visiting their loved ones in-person — the Health Department began unannounced in-person inspections to nursing homes statewide.
The department said it conducted more than 3,840 on-site infection control surveys statewide since the start of the pandemic, with its team of 200 investigators conducting site visits to every facility at least once. The department issued 298 infection control citations statewide to 184 nursing homes, officials said.
"To date, we have levied a total of more than $1.6 million in fines to more than 140 nursing homes, and this only represents a portion of the total number of cases for which we are actively pursuing fines," the department said.
Health officials said every COVID-19 infection control violation is referred for enforcement and a fine. Some enforcement actions, officials said, are still in progress.
"Some of these violations were a function of dealing in a very intense situation — a situation where the state did not have all the knowledge we have now when fighting the virus," Hanse said.
But Kohn said state inspectors "do not always identify quality of care problems that exist in facilities, and too often classify the problems they do find as less severe than they actually are. The result is that state inspectors … tend to systematically underreport serious deficiencies, including ones that pose an immediate threat to residents’ health and safety."
Nursing homes are required to submit a written plan of correction when deficiencies are cited. In each case on Long Island, the state accepted the nursing home’s plan.
"The real question is not if they have a policy but does your staff actually implement that policy consistently and appropriately," Edelman said.
Robert Brodsky is a breaking news reporter who has worked at Newsday since 2011. He is a Queens College and American University alum.
