New York State Attorney General finds that the majority of resident deaths occurred in facilities with low nurse staffing levels.
In Nursing Home Response to COVID-19 Pandemic (Jan. 2021), 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. 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.”
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.”
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.
Rejecting the nursing home industry’s repeated claim that facilities are blameless for cases and deaths caused by the pandemic, 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.’”
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.”
February 4, 2021 – T. Edelman
 Nursing Home Response to COVID-19 Pandemic (ny.gov)
 Id. 13.
 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)
 Nursing Home Response to COVID-19 Pandemic, p. 23.
 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/
 Nursing Home Response to COVID-19 Pandemic, p. 30.
 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.