By Frank G. Runyeon

Law360, New York (January 28, 2021, 11:24 AM EST) -- The New York attorney general accused the state Health Department on Thursday of undercounting COVID-19 deaths in nursing homes by as much as 50%, issuing a blistering report that faulted poor infection controls and understaffing as the pandemic ravaged the frail and elderly.

Attorney General Letitia James said health officials reported that 6,645 people died in nursing homes as of Nov. 16. But James' 76-page report found that the state had underreported the number of deaths in nursing homes and that facilities with lower staffing and poor compliance with existing regulations — including failure to isolate sick residents, continued group activities and lax employee screening — increased health risks.

In a response later Thursday, the Health Department rejected claims of an "undercount" even as it released preliminary data revising its COVID-19 nursing home death toll upward. The department said the figure stood at nearly 13,000 COVID-19 confirmed and presumed fatalities as of Jan. 19 – a 50% increase, matching the attorney general's claim.

The AG's report buttressed long-standing complaints that insufficient testing and inadequate personal protective equipment, or PPE, at nursing homes increased the risk of harm.

"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," James said. "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."

A survey of 62 nursing homes showed there was 55% discrepancy between what the facilities told James' investigators and what state health officials told the public. The report says the attorney general "is investigating those circumstances where the discrepancies cannot reasonably be accounted for by error or the difference in the question posed."

The report also notes that the current state reimbursement model for nursing homes gives the facilities financial incentive "to transfer funds to related parties (ultimately increasing their own profit) instead of investing in higher levels of staffing and PPE."

A controversial legal immunity shield buried in the April state budget bill also "may have allowed facilities to make financially-motivated decisions," the attorney general said.

Democratic state legislators immediately expressed outrage.

"This is shocking and unconscionable, but not surprising," said Assemblyman Richard Gottfried of New York City, who has chaired the chamber's Health Committee for three decades.

The state Health Department has stonewalled requests by legislators and journalists demanding the release of data behind COVID-19 nursing home deaths, he said. "I and others have long believed that it was drastically undercounting nursing home deaths."

State Sen. Alessandra Biaggi, who represents parts of the Bronx and Westchester, once again pushed to fully repeal legal immunity for nursing homes and make the repeal fully retroactive.

"We must urgently act to repeal the remaining protections under the governor's disastrous immunity provision passed in last year's budget, and provide New York's families with the proper legal recourse to pursue justice," Biaggi said. She and her allies won a partial repeal of the law in August.

"All who are involved in what is quite literally a cover-up of a massive loss of life must be held responsible," Biaggi said. "Health Commissioner Howard Zucker has completely failed to do his job and has betrayed public trust when his transparency was needed most."

Republican legislators, in the minority in both chambers, called for Zucker's resignation.

"For months, Governor Cuomo and his administration have refused to be transparent or take any responsibility for actions they have taken during this public health crisis — including the deadly March 25, 2020, order to send COVID-positive patients into nursing homes," Senate Minority Leader Robert Ortt, who represents an area north of Buffalo, said in a statement.

Zucker responded to the attorney general's report in a 1,700-word press statement hours later on Thursday, contesting the idea of undercounted deaths. He argued that DOH's statewide count remains accurate, or at least true to the numbers he received, and appeared to suggest any errors could be traced to the facilities, not the Health Department.

"As the OAG report states, reporting from nursing homes is inconsistent and often inaccurate," Zucker said. In any event, his office had been upfront about not including the COVID-19 deaths of nursing home residents who died at hospitals in its nursing home death totals.

"The word 'undercount' implies there are more total fatalities than have been reported; this is factually wrong," Zucker said.

The health commissioner then released preliminary data showing "9,786 confirmed fatalities" and "2,957 presumed COVID nursing home fatalities" of New York nursing home residents, "including 5,957 fatalities within nursing facilities, and 3,829 within a hospital."

The updated statistic – 12,743 confirmed and presumed nursing home deaths – showed a 50 percent increase from the 8,505 originally reported.

Zucker also said the governor's March order that nursing homes take in COVID-19 patients was in line with federal guidelines.

Advocates for nursing home residents said the report was further evidence of a broken oversight system.

"I think the report really demonstrates or confirms the long-standing failures in the state to hold nursing homes accountable," said Richard Mollot of the Long Term Care Community Coalition. Mollot noted that while New York state has good nursing home regulations, "we need meaningful oversight."

"COVID-19 exposed the rot in the system, and part of that rot was the failure to ensure that minimum standards of care are met," Mollot said.

--Editing by Alyssa Miller and Jill Coffey.

Clarification: This article has been updated to clarify DOH's updated death toll figures.

For a reprint of this article, please contact reprints@law360.com.