DOH chief grilled on nursing home deaths
State lawmakers argue that last month's report on lives lost is misleading; many also call for change in visitation policy
Lawmakers on Monday slammed state Health Commissioner Dr. Howard Zucker over potentially downplaying the number of COVID-19 deaths in nursing homes to defend state policies.
During a long-awaited hearing, legislators repeatedly questioned why state health officials only release data that show about 6,500 virus-related deaths occurred inside New York nursing homes, omitting statistics on resident fatalities at hospitals.
Some lawmakers asserted a controversial Department of Health report released last month is missing details on thousands of additional lives lost to COVID-19 after nursing home residents were transferred to hospitals.
Addressing Zucker on Monday, state Sen. Gustavo Rivera said: "It seems, sir, that you are trying to do it one way so you can look better."
The questioning of Zucker spanned nearly three hours. Much of it focused on the Health Department report, which contended that COVID-19 infected nursing home workers and visitors unknowingly introduced the deadly virus into many facilities, where it spread rapidly among frail and elderly residents most susceptible to the respiratory disease.
Zucker vehemently defended the report's findings, as well as a March 25 order that directed nursing homes to admit COVID-19 infected patients from hospitals, if medically stable.
"This state and the Department of Health has been incredibly aggressive on this issue," he said, referring to ongoing efforts to provide personal protective equipment (PPE) to nursing homes, test staff for COVID-19 and improve infection-control practices.
Zucker said state officials, in part, didn't report details of nursing home resident deaths at hospitals due to concerns about counting them twice. He added state health officials are currently attempting to verify the overall death toll.
"I will not provide information unless I’m sure it is absolutely accurate," he said, noting the numbers will be released at some point.
Yet many lawmakers noted several other states, such as California, release the overall COVID-19 death toll of nursing home residents to better inform policy decisions.
Asked repeatedly to say if any other states withhold details about deaths at hospitals the same way as New York, Zucker could not provide an example.
Zucker, however, contended the report's findings — including that the March 25 order was "not a significant factor in nursing home fatalities" — would remain substantively unchanged even after accounting for the additional deaths, despite some other public health experts raising doubts.
"I think the conclusion of the report will remain the same," Zucker said.
Addressing the March 25 order, Zucker added the goal "was to make sure that we did not discriminate against COVID-positive patients."
"This issue came up with HIV/AIDs," he said, referring to the sexually transmitted infection epidemic's early days in the 1980s. "There was a big concern that people were not allowing people with HIV into nursing homes."
Zucker also said transferring nursing home residents from hospitals to alternative sites, such as convention centers converted into temporary hospitals, wasn't a sound medical option because the facilities weren't designed to care for residents' physical ailments and cognitive issues.
Yet many lawmakers on Monday contended state health officials, including Zucker, are failing in many ways to address some of the primary reasons that COVID-19 ravaged nursing homes, such as a insufficient staffing and poor infection-control.
"These are issues that have been around forever and the pandemic's shining a light on how prevalent these issues are," said Sen. Pamela Helming, R-Canandaigua.
Visitation policy decried, defended
Many lawmakers urged Zucker to reevaluate a policy that allowed limited visitation to resume at nursing homes and long-term care facilities after a months-long ban aimed at preventing the spread of COVID-19.
The new rules, which took effect July 15, only allow visitors to facilities that have been without COVID-19 for at least 28 days, a threshold set by the federal Centers for Medicare and Medicaid Services.
Several legislators described stories of New Yorkers concerned about family and loved ones isolated in nursing homes for months, with their health and mental well-being deteriorating.
Assemblyman John McDonald III, D-Cohoes, Albany County, cited fears about rising depression rates among nursing home residents effectively "dying of isolation."
McDonald and other lawmakers questioned if the new visitation rules were too strict, calling for reducing the number of days a facility must be virus-free, or instituting a program to test visitors to make it easier to connect loved ones to residents.
"I really want to move forward ... but I just don't want this (virus) to spread," Zucker responded.
Of the states 613 nursing homes, only 117 facilities have met the criteria and begun allowing visitors again, according to Zucker. A total of 209 facilities have completed their policies so far seeking to allow visitors.
Zucker noted health officials are reviewing the visitation issue and will make any future adjustments based on the best available COVID-19 science and data.
"This is just so dangerous and so deadly that we need to be so cautious about this," he said.
Facilities' legal liability
Meanwhile, health care facilities, including nursing homes, could face more legal liability due to COVID-19 in New York if Gov. Andrew Cuomo signs a bill passed recently in the state Legislature.
The measure would narrow the scope of immunity liability due to coronavirus care at New York hospitals and nursing homes.
The bill, passed July 23, would change a law passed in April that requires either gross negligence or intentional misconduct by the health-care facilities to prove liability.
Asked about the immunity granted in July, Zucker said he didn't read the exact measure during the budget debates but had legal experts in the Health Department who reported to him about the issue.
"No one is saying we're allowing bad actors to act in the community, doctors or anyone else," Zucker said.
He added "we are in an unprecedented time and we wanted to be sure that there was care provided."
The hearing on Monday focused on downstate nursing homes.
Lawmakers also questioned officials with health care trade groups, nursing home resident advocates and other stakeholders.
Another hearing on upstate facilities is set for next Monday, Aug. 10.