Sorting out how politics, policies figure in flap over New York nursing home Covid death rates

Reviewed by Emily Henderson, B.Sc.Mar 2 2021

The plaudits have faded for New York Gov. Andrew Cuomo. Once hailed as a paragon of pandemic governing, he's since come under scorching criticism for undercounting the state's Covid deaths among nursing home residents by as much as half. The tallying flap drew attention to another misstep: a policy last March that directed nursing homes to accept Covid-positive patients from hospitals, potentially exposing high-risk, medically vulnerable nursing home residents to the deadly virus.

Did the governor intentionally fudge nursing home death counts to deflect attention from the impact of an ill-advised directive? That depends on whom you ask. The governor's allies say the policy was a good-faith effort to assist hospitals that feared they were going to be overrun by Covid patients. The counting snafu, they say, arose out of an excess of caution because the administration didn't want to double count deaths. Critics, and there are many, point to a different motivation. They suggest the governor didn't want his image as a competent pandemic leader to be tarnished by a wrongheaded policy that the administration withdrew within weeks.

Interest in these issues is unlikely to abate anytime soon. Following the critical report by the New York attorney general that highlighted the undercounting problem, the governor's top aide came under fire for admitting to state legislators that the administration withheld complete nursing home Covid death data from them. Now the FBI and the U.S. attorney's office in Brooklyn have reportedly opened an investigation into the handling of long-term care facilities during the pandemic.

Judging from the number of questions and comments KHN and PolitiFact have fielded on the subject, it's clear that many readers are confused and concerned. Here's a quick guide to help sort it out.

By the numbers

Cuomo frequently touts how well New York stacks up against other states in preventing nursing home Covid deaths. In September, he said New York ranked 46th out of 50 states, a claim we examined and found to be Mostly False. A key problem is that until recently the New York totals didn't include deaths of nursing home residents that occurred in hospitals.

State comparisons are tricky. But most other states, perhaps all of them, do include hospital deaths in their Covid nursing home totals, said Priya Chidambaram, a senior policy analyst at KFF, the Kaiser Family Foundation. (KHN is an editorially independent program of the foundation.)

"New York's decision to pull out the hospital-based deaths was not based on standard practice," she said, noting that federal rules for reporting Covid nursing home deaths require that states include off-site deaths in hospitals.

New York's unorthodox exclusion of hospital deaths was always noted in the fine print on the data sheets. But the governor didn't offer a disclaimer when he boasted of the state's better-than-average performance based on an incomplete count.

Just how incomplete became evident when New York Attorney General Letitia James released a report in late January that found the state's published data on nursing home Covid deaths undercounted the total by up to 50%. The reason: the exclusion of hospital deaths as well as underreporting by some nursing homes.

The state soon released a revised total of nearly 15,000 deaths among residents of long-term care facilities, about double the earlier tally of roughly 8,500, as reported by news outlets such as The New York Times and The Associated Press. The Empire Center set that number higher, around 8,940.

Using the updated, more comprehensive figures, the state's Covid death rate for nursing homes of roughly 29% is still somewhat better than the national average of 37%, said Chidambaram, who tracks Covid mortality in long-term care facilities. Last month, we published a fact check examining Cuomo's recent claims about below-average nursing home Covid deaths and found them to be Mostly True.

Advocates and public health officials agree it's crucial to incorporate hospital Covid deaths into the nursing home mortality figures.

"If you can't source [the infection] back to the place it occurred, you can't stop it," said Christopher Laxton, executive director of the Society for Post-Acute and Long-Term Care Medicine, which represents medical personnel who work in those settings.

The New York State Senate passed a bill last month that would require the Department of Health to record the Covid deaths of nursing home residents who subsequently die in hospitals as nursing home deaths.

The March 25 policy

Last March, New York was the epicenter of a disease outbreak whose scope was still unknown. More than a thousand people were being hospitalized every day in the state, and experts were genuinely concerned that hospitals would run out of space to treat the influx of Covid patients.

Cuomo issued the controversial March directive instructing nursing homes to take in recovering Covid patients who'd been hospitalized. There was an almost immediate outcry that the policy seemed to put frail, elderly nursing home residents, who were particularly vulnerable to the virus, at enormous risk.

The governor said he was simply following Centers for Disease Control and Prevention guidance, a claim we investigated and found to be Mostly False. But was the administration's policy responsible for sowing the seeds of infection that killed thousands of nursing home residents, as a top Trump administration official claimed? We examined that claim and found it, too, was Mostly False.

On May 8, the administration amended the March directive and said hospitals could not discharge patients to nursing homes without a negative Covid test.

Last summer, the state health department put out a self-serving report claiming the timeline of when the 6,327 recovering Covid patients entered the nursing homes and when nursing home residents died showed that the Covid-positive patients could not have been a driver of infections or deaths in nursing homes. The report pinned the blame for spreading disease on staff members and visitors.

Epidemiologists said the report's position that the governor's policy didn't open nursing homes to Covid infections was nonsense. But they agreed that staff and visitors likely played a larger role in introducing the virus.

The Empire Center for Public Policy, a conservative think tank, released a report last month that found the March 25 directive was associated with 4.2 additional deaths per facility, on average.

Showing an association is not the same as showing that one thing caused another, the report notes. And analysts pointed out other shortcomings in the study, such as not incorporating the precise dates when Covid-positive patients were admitted, which made any findings of associated deaths unreliable.

In a statement, New York state health commissioner Dr. Howard Zucker said, "The Empire Center's conclusion that 'the data indicate that the March 25 memo was not the sole or primary cause of the heavy death toll in nursing homes'" is consistent with the health department's analysis that the policy "was not a driver of Covid infections and fatalities and Covid was introduced to nursing homes primarily through staff and visitors."

Bill Hammond, a senior fellow for health policy at the Empire Center and the study's co-author, said he believed that deflecting criticism of the governor's March policy was at the root of the administration's decision to withhold the hospital Covid deaths of nursing home residents. The center sued the state health department to release the numbers. The Associated Press made a Freedom of Information Act request for the data.

"If it hadn't been for a court order, they would still be hiding this data," Hammond said.

Beyond the numbers

New York's nursing home Covid controversy goes beyond whether Cuomo intentionally tried to obscure some numbers.

Nationally, fewer than 1% of people live in long-term care facilities but make up 35% of Covid deaths, according to the Covid Tracking Project.

The bullet point from the New York attorney general's report that has gotten the most attention was the assertion that nursing home deaths may have been undercounted.

But other troubling factors documented in the report put nursing home residents at risk, including poor infection control practices, insufficient staffing and inadequate personal protective equipment and Covid testing.

These findings are preliminary and the AG's office continues to investigate.

The report highlighted the "catastrophe" that many nursing home residents and their families have experienced, said Richard Mollot, executive director of the Long Term Care Community Coalition, which represents people in long-term care settings.

"It's part of the broader issue that we face, that the lives of nursing home residents are not counted much to begin with," Mollot said.

Without a vaccine last year, "it really laid bare the need for better infection control: really good mask-wearing, a lot of testing of staff," said Denis Nash, an epidemiologist at the City University of New York School of Public Health.